{ "id": 9251343, "name": "STATE OF NORTH CAROLINA v. DONALD DEE LOWE", "name_abbreviation": "State v. Lowe", "decision_date": "2002-12-17", "docket_number": "No. COA02-154", "first_page": "607", "last_page": "616", "citations": [ { "type": "official", "cite": "154 N.C. App. 607" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "450 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "338 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519966 ], "year": 1994, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0502-01" ] }, { "cite": "566 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220066, 220101, 219944, 219955, 219933 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0754-03", "/nc/355/0754-01", "/nc/355/0754-02", "/nc/355/0754-04", "/nc/355/0754-05" ] }, { "cite": "563 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "3" }, { "page": "4" }, { "page": "5" }, { "page": "4", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131462 ], "year": 2002, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0713-01" ] }, { "cite": "565 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080746 ], "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0446-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" }, { "page": "(a3)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "544 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685088, 685106, 685052, 685093 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0362-01", "/nc/352/0362-02", "/nc/352/0362-04", "/nc/352/0362-03" ] }, { "cite": "506 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197996 ], "year": 1988, "pin_cites": [ { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0156-01" ] }, { "cite": "503 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "348 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659841 ], "year": 1998, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0644-01" ] }, { "cite": "361 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "321 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566386 ], "year": 1987, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0072-01" ] }, { "cite": "460 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "352" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917335 ], "year": 1995, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0708-01" ] }, { "cite": "337 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "841", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "87", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "364 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "351", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "321 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570243 ], "year": 1988, "pin_cites": [ { "page": "459", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0454-01" ] }, { "cite": "566 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "154", "parenthetical": "quoting State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (citation omitted)" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080916 ], "year": 2002, "pin_cites": [ { "page": "496", "parenthetical": "quoting State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0493-01" ] }, { "cite": "546 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135681, 135977, 135722, 135667, 135868 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0277-04", "/nc/353/0277-01", "/nc/353/0277-05", "/nc/353/0277-03", "/nc/353/0277-02" ] }, { "cite": "533 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "139 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496411 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/139/0209-01" ] }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "51" }, { "page": "116" }, { "page": "51" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465606 ], "year": 1998, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0113-01" ] }, { "cite": "564 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "151 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079463 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/151/0107-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "651-52", "parenthetical": "citation omitted" }, { "page": "652", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "65-66", "parenthetical": "citation omitted" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] } ], "analysis": { "cardinality": 904, "char_count": 22642, "ocr_confidence": 0.743, "pagerank": { "raw": 1.8315130140804553e-07, "percentile": 0.7208063095570437 }, "sha256": "8d6bf42bb12933b2b09eba87128b801746f758fb4ba9c639297001c98e4c8ef6", "simhash": "1:8fa8c0cc522cc450", "word_count": 3727 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD DEE LOWE" ], "opinions": [ { "text": "CAMPBELL, Judge.\nOn 6 March 2001, Donald Lowe (\u201cdefendant\u201d) was charged with felonious child abuse of his son, Joshua Lowe (\u201cJoshua\u201d), assault with a deadly weapon inflicting serious injury on James Hendricks and assault with a deadly weapon inflicting serious injury on Nannie Hendricks. On 6 April 2001, defendant was indicted on these offenses and additionally charged with assault on a female and assault on a law enforcement officer. On 25 September 2001 these cases were tried before Chatham County Superior Court Criminal Session and the jury found defendant guilty on all charges. Defendant then appeared 3 December 2001 before Judge Gregory Weeks for correction of his sentence. On appeal, defendant assigns error to the following actions of the trial court: I. Sentencing defendant at a prior conviction level II; II. Overruling defendant\u2019s objection to admission of Joshua\u2019s out-of-court statement as an \u201cexcited utterance;\u201d and III. Denying defendant\u2019s motion to dismiss the allegations of inflicting serious injury in the assault charges in 01 CRS 1061, 1062 and 1064 due to the insufficiency of the evidence. By appealing, defendant seeks dismissal of the charges due to the insufficiency of the evidence, or alternatively, a new trial due to improperly admitted evidence or a new sentencing hearing. We hold that the evidence was sufficient to convict defendant on the charges against him and that all the evidence was properly admitted. We find no error in the trial court\u2019s rulings and therefore, we affirm.\nThe State\u2019s evidence showed that in the early morning of 6 March 2001, defendant began hitting, choking and kicking Melinda Phillips (\u201cMelinda\u201d), the mother of defendant\u2019s children. While defendant had Melinda down on the floor choking her, their three children entered the room and started hitting defendant to get him off of their mother. Joshua, nine years old at the time, hit defendant on his back with a pool stick, causing the stick to break. Melinda ran out of the house and told the children to run. Cassie, eight years old, ran across the street to James and Nannie Hendricks\u2019 home. The Hendricks woke up when they heard Cassie enter and say, \u201cPlease help me. My daddy is beating my momma.\u201d Then defendant entered the Hendricks\u2019 home wielding the broken pool stick and threatened to kill them all. He hit James Hendricks in the head with the stick and Nannie in the nose with it and then he hit his son Joshua, who was standing in the doorway, in the head, causing a large laceration. Defendant later picked Joshua up and carried him to his grandmother\u2019s house and Joshua\u2019s uncle took him to the hospital.\nAs defendant\u2019s foremost request is that we dismiss his convictions, we apply the standard of review for a motion to dismiss. As recently stated by this Court:\nWhen ruling on a defendant\u2019s motion to dismiss a criminal action, \u201c \u2018the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant\u2019s being the perpetrator of the offense. If so, the motion to dismiss is properly denied.\u2019 \u201d State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) (citation omitted). Whether the evidence presented is substantial is a question of law for the court, (citation omitted). Substantial evidence is \u201c \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201c \u2018If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed.\u2019 \u201d Earnhardt, 307 N.C. at 66, 296 S.E.2d at 652 (citation omitted).\nState v. Siriguanico, 151 N.C. App. 107, 564 S.E.2d 301 (2002).\nI. Prior record level II\nDefendant first assigns error to the trial court\u2019s sentencing him at a prior conviction level II. At the sentencing hearing, the State submitted a prior criminal record to the court and proposed that defendant be considered a level II for sentencing purposes. Thereupon, defendant\u2019s trial counsel told the court, \u201c[M]y client does raise some issue with respect to the Rowan County matter. He just doesn\u2019t seem to recall that situation.\u201d Defendant\u2019s counsel, however, did not object to defendant having a prior record level II status. Defendant argues that an objection concerning the evidence of his prior criminal record demands a certified copy before the sentencing court may properly consider it. We disagree. Prior convictions can be proven by: \u201c(1) Stipulation of the parties. (2) An original or copy of the court record of the prior conviction. (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts. (4) Any other method found by the court to be reliable.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f)(I)-(4) (2001). The trial transcript shows that the State submitted to the court a prior criminal record and that the court considered the record to be reliable. In State v. Rich, the defendant argued that the trial court erred \u201cby accepting the State\u2019s offer of \u2018an unverified computerized printout not under seal\u2019 to prove defendant\u2019s prior criminal convictions.\u201d State v. Rich, 130 N.C. App. 113, 115, 502 S.E.2d 49, 51 (1998). This Court held that \u201c[t]he computerized record contained sufficient identifying information with respect to defendant to give it the indicia of reliability.\u201d Id. at 116, 502 S.E.2d at 51. As was the case in Rich, the defendant here submitted no authority for his contention that the State must produce a certified copy of the prior conviction if defendant objects to the evidence used to establish his prior criminal record. The statute is clear that the court may use \u201c[a]ny . . . method found by the court to be reliable.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f)(4) (2001). Therefore, we defer to the trial court\u2019s finding that the criminal record submitted by the State contained sufficient evidence \u201cto give it the indicia of reliability.\u201d Rich at 116, 502 S.E.2d at 51.\nUnder the Structured Sentencing provisions of the Criminal Procedure Act, the prior record level for felony sentencing is to be determined by N.C. Gen. Stat. \u00a7 15A-1340.14, which provides that a felony offender\u2019s prior record level is determined by calculating the sum of the offender\u2019s prior conviction points. The offender receives one point for each prior misdemeanor that falls under the statute and the offender\u2019s level is determined by his total number of points. For a prior record \u201cLevel II,\u201d the offender must have \u201c[a]t least 1, but not more than 4 points.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(c)(2) (2001). Defendant had a total of three prior points and therefore, even without the \u201cRowan County matter,\u201d which was a conviction for driving under the influence of drugs, defendant would have still had two points. Thus, it would have been harmless error to include a point for the offense that defendant \u201cjust doesn\u2019t seem to recall,\u201d since only one point is needed to be a level II. See State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000), appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000).\nII. Admission of Joshua\u2019s out-of-court statement\nDefendant next assigns error to the trial court\u2019s overruling defendant\u2019s objection to the admission of Joshua\u2019s hearsay statement as an \u201cexcited utterance\u201d through the testimony of Detective Perry, who interviewed Joshua at the hospital. Hearsay is \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2001). Under Rule 803(2) of the North Carolina Rules of Evidence, hearsay that fits the requirements of an excited utterance is admissible as an exception to the general rule against hearsay. For a statement to fall within the excited utterance exception, there must be: \u201c \u2018(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u2019 \u201d State v. Wright, 151 N.C. App. 493, 496, 566 S.E.2d 151, 154 (2002) (quoting State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (citation omitted)). Further, our Supreme Court has been more lenient with respect to the passage of time between the two essential elements of an excited utterance in cases involving statements made by children. By doing so, it has recognized that \u201cthe stress and spontaneity upon which the [excited utterance] exception [to the hearsay rule] is based is often present for longer periods of time in young children than in adults.\u201d State v. Smith, 315 N.C. 76, 87, 337 S.E.2d 833, 841 (1985) (emphasis added). The statement, therefore, does not have to be contemporaneous with the startling event, but, as the Smith Court held, \u201c[spontaneity and stress are the crucial factors.\u201d Smith at 88, 337 S.E.2d 842.\nIn the case sub judiee, the statement in dispute is the one made by Joshua to Detective Perry at the hospital after the incident in which defendant hit Joshua with a pool stick. Joshua did not testify at trial. Detective Perry testified that Joshua told him \u201cthat his dad and mom . . . were fighting, and when he went in that [his dad] was hitting his mom. . . . [And] when his dad entered Nannie\u2019s residence, ... he hit James and Nannie with the pool stick and then turned and hit [Joshua] with the pool stick.\u201d Prior to this testimony being allowed, defense counsel objected, upon which a bench conference was held off the record, and the jury was excused temporarily. During the proceedings outside the jury\u2019s presence, the court decided that this case falls within the excited utterance exception under State v. Thomas, in which this Court held that the trial court properly admitted, as an excited utterance, hearsay testimony regarding a five-year-old victim\u2019s conversation with her classmates four to five days after the incident in which she was sexually abused by her father. The trial court in that case:\n[Specifically found that A.\u2019s statement to L. and B. was a spontaneous response to their questions, made while A. was under \u201cobvious distress\u201d precipitated by events which occurred \u201cwithin a four to five day period at most.\u201d Reasoning that a child of five \u201cis characteristic [ally] free of conscious fabrication for longer periods [of time] including . . . four or five days, the court concluded that A.\u2019s assertions to L. and B. fell within the excited utterance exception to the hearsay rule.\u201d\nState v. Thomas, 119 N.C. App. 708, 712, 460 S.E.2d 349, 352 (1995). Upon reviewing the trial court\u2019s findings, this Court held:\n[T]he victim\u2019s conversation with L. and B. on the playground was of such a nature as to have been properly admitted under the excited utterance exception to the hearsay rule. Although the precise date of the alleged assault is unclear from the record, A. told her friends on the Wednesday after Thanksgiving that it occurred sometime during the previous weekend. As the trial court found, therefore, A.\u2019s statement on the playground came \u201cwithin a four to five day period at most\u201d of the incident of which she spoke. In the circumstances of this case, we do not believe the passage of four or five days detracts from the \u201cspontaneity\u201d of A.\u2019s response.\nId. at 713, 460 S.E.2d at 353. In the case before us, Joshua\u2019s statement to Detective Perry occurred several hours after the incident in which defendant was fighting with Joshua\u2019s mother, assaulted the Hendricks and hit Joshua with a pool stick. As our extensive case law on this issue supports the proposition that children may spontaneously react to startling experiences well after the events took place, we hold that the trial court was correct in finding that Joshua\u2019s statement to Detective Perry falls within the excited utterance exception. Further, our case law is clear that statements made in response to a posed question do not necessarily lack spontaneity. See State v. Murphy, 321 N.C. 72, 77, 361 S.E.2d 745, 748 (1987). Therefore, the fact that Joshua\u2019s statement was prompted by Detective Perry asking him what had happened, does not infer that Joshua may have made a statement as a result of \u201creflection or fabrication.\u201d Smith at 86, 337 S.E.2d at 841. As the State argued and the trial court held, Joshua \u201cwas still in an excited state when he got to the UNO ER. . . . [And] he [was] still suffering from the traumatic events of the morning and the passage of a couple of hours would not detract from the spontaneity of the statements he gave to Officer Perry when interviewed.\u201d\nAdditionally, defendant argues that the cases used to support the latitude given the time factor in cases where spontaneous statements were uttered by children are distinguishable from this case because Joshua did not witness a death or experience a sexual trauma. We find that this argument has no merit, as witnessing one\u2019s father cause serious physical injury to one\u2019s mother, friends and oneself is certainly a sufficiently traumatic experience for a child, to support this same latitude being given to the time span between the incident and the utterance.\nMoreover, Deputy Perry\u2019s testimony as to Joshua\u2019s statement was admissible as an exception to the rule against hearsay. Defendant argues that since the State did not call Joshua to testify, he became an unavailable witness; thus, pursuant to Rule 804(b)(5), the trial court must make findings that Joshua was unavailable as a witness. Upon doing so, the court, defendant argues, must follow the six steps set out in Smith to determine if hearsay testimony is admissible under the \u201cresidual\u201d exception to the hearsay rule in Rule 803(24). On the contrary, we find that the trial court did not err in not making findings that Joshua was unavailable because Joshua\u2019s hearsay statement falls within the excited utterance exception. When hearsay evidence comes within a firmly rooted hearsay exception, unlike the \u201cresidual\u201d or \u201ccatchall\u201d exception of 803(24), \u201cthe Confrontation Clause of the North Carolina Constitution is not violated, even though no particularized showing is made as to the necessity for using such hearsay or as to its reliability or trustworthiness.\u201d State v. Jackson, 348 N.C. 644, 654, 503 S.E.2d 101, 107 (1998). Reversing this Court\u2019s initial holding in Jackson, our state Supreme Court held upon review of the case that the availability of a hearsay declarant does not preclude the admission of hearsay evidence under the \u201cstate of mind\u201d exception in Rule 803(3). In State v. Washington, this Court applied the Jackson holding to affirm the admission of hearsay evidence under the excited utterance exception, which is at issue in the case before us. State v. Washington, 131 N.C. App. 156, 161-62, 506 S.E.2d 283, 287-88 (1988), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000). Thus, the trial court did not err by admitting the hearsay evidence as an excited utterance under Rule 803(2) without any showing that Joshua was unavailable and without making any findings required under the residual exception.\nIII. Assault with a deadly weapon inflicting \u201cserious injury\u201d\nFinally, defendant argues that the trial court erred in denying his motion to dismiss the charges of assault with a deadly weapon inflicting serious injury due to insufficient evidence. Defendant was convicted of the charges in 01 CRS 1061 of felonious child abuse inflicting serious injury under N.C. Gen. Stat. \u00a7 14-318.4 and in 01 CRS 1062 and 1064 of assault with a deadly weapon inflicting serious injury under N.C. Gen. Stat. \u00a7 14-32(b). Defendant argues that under N.C. Gen. Stat. \u00a7 14-32.4, there is insufficient evidence to find him guilty of \u201cserious bodily injury,\u201d as defined by that statute. Defendant, however, was not convicted under that statute and his argument is without merit. Prior to defining \u201cserious bodily injury,\u201d \u00a7 14-32.4 states, \u201cUnless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony.\u201d N.C. Gen. Stat. \u00a7 14-32.4 (2001). Because defendant\u2019s conduct was covered under statutes providing that he is guilty of a Class E felony, a greater punishment than Class F, the definition of \u201cserious bodily injury\u201d in \u00a7 14-32.4 does not apply.\nFirst, under \u00a7 14-32(b), the elements of assault with a deadly weapon inflicting serious injury are: an assault, with a deadly weapon, inflicting serious injury, and not resulting in death. State v. Uvalle, 151 N.C. App. 446, 565 S.E.2d 727 (2002) (emphasis added) (citation omitted). Secondly, to prove felony child abuse under N.C. Gen. Stat. \u00a7 14-318.4, the State must show that \u201c[a] parent or any other person providing care to or supervision of a child less than 16 years of age . . . intentionally inflict[ed] any serious physical injury upon or to the child or . . . intentionally committed] an assault upon the child which resulted] in any serious physical injury to the child[.]\u201d N.C. Gen. Stat. \u00a7 14-318.4(a) (2001) (emphasis added).\nBy our recent holding that \u201cassault inflicting serious bodily injury [under G.S. \u00a7 14-32.4] ... is not a lesser-included offense of assault with a deadly weapon with intent to kill and inflict serious injury [under G.S. \u00a7 14-32(a)]\u201d this Court has recognized that the definition of \u201cserious bodily injury\u201d in G.S. \u00a7 14-32.4 does not apply to the term \u201cserious injury\u201d under G.S. \u00a7 14-32(a) or (b). State v. Hannah, 149 N.C. App. 713, 716, 563 S.E.2d 1, 3 (2002), review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). Furthermore, the Hannah Court stated, \u201cOur Courts have declined to define \u201cserious injury\u201d for purposes of assault prosecutions, other than stating that \u201c \u2018[t]he injury must be serious but it must fall short of causing death\u2019 and that \u2018[f]urther definition seems neither wise nor desirable.\u2019 \u201d Hannah at 718, 563 S.E.2d at 4 (quoting State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994)). By enacting a statute in 1997 to cover \u201cassault inflicting serious bodily injury,\u201d the legislature clearly intended to create a separate offense which has been found to require \u201cproof of more severe injury than the element of \u2018serious injury[.]\u2019 \u201d Hannah at 719, 563 S.E.2d at 5; see also N.C.G.S. \u00a7 14-32.4 (2001). We agree with the Hannah Court that upon \u201creview of the relevant statutes and case law, we conclude that \u201cserious bodily injury\u201d requires proof of more severe injury than the \u201cserious injury\u201d element of the indicted offense.\u201d Hannah at 717, 563 S.E.2d at 4 (citation omitted).\nIn addition, the definition of \u201cserious bodily injury\u201d in G.S. \u00a7 14-32.4 does not apply to \u201cserious physical injury\u201d in G.S. \u00a7 14-318.4(a), under which defendant was found guilty of felonious child abuse, a Class E felony. In fact, G.S. \u00a7 14-318.4(a3) provides a separate offense of felonious child abuse if a parent, care provider or supervisor \u201cintentionally inflicts any serious bodily injury to the child or who intentionally commits an assault upon the child which results in any serious bodily injury to the child.\u201d N.C. Gen. Stat. \u00a7 14-318.4(a3) (2001) (emphasis added). The statute goes on to define \u201cserious bodily injury\u201d and holds that violation of this statute is a Class C felony. Moreover, the definition of \u201cserious bodily injury\u201d in this statute mirrors the definition of the same in G.S. \u00a7 14-32.4. Clearly, the legislature has intended the definition of \u201cserious physical injury\u201d and \u201cserious bodily injury\u201d in this statute to possess distinctly different meanings.\nAt any rate, the evidence was sufficient to find defendant guilty of \u201cserious physical injury\u201d to Joshua as charged in 01 CRS 1061 and of \u201cserious injury\u201d to James Hendricks and Nannie Hendricks as charged in 01 CRS 1062 and 1064, respectively. Without detailing the injuries to each, the injuries suffered by all the victims clearly fall within the realm of injuries contemplated by the applicable statutes.\nAccordingly, we find no error in the trial court\u2019s holdings.\nNo error.\nJudges WALKER and McCULLOUGH concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.", "John T. Hall, for de/ewdcmi-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD DEE LOWE\nNo. COA02-154\n(Filed 17 December 2002)\n1. Sentencing\u2014 prior record level \u2014 method of proof\nThere was no authority for defendant\u2019s contention that the State must produce a certified copy of the record of a prior conviction if defendant objects to the evidence used to establish the record. By statute, prior convictions may be proven by any method found to be reliable; moreover, defendant had sufficient points for the record level even without this conviction.\n2. Evidence\u2014 hearsay \u2014 excited utterance \u2014 child assault victim \u2014 statement to detective hours later\nThere was no error in an assault prosecution in admitting as an excited utterance a statement given by a child who had been struck by his father with a pool cue where the statement was given at a hospital several hours after the attack. Children may react to startling experiences well after the events take place, and statements in response to a question do not necessarily lack spontaneity.\n3. Evidence\u2014 hearsay \u2014 child\u2019s statement \u2014 excited utterance \u2014 no showing that child unavailable\nThe trial court did not err in an assault prosecution by admitting the child-victim\u2019s statement to a detective as an excited utterance without a showing that the child was unavailable and without the findings required for the residual exception.\n4. Assault; Child Abuse and Neglect\u2014 serious injury \u2014 serious physical injury \u2014 sufficiency of evidence\nDefendant was properly convicted of two counts of assault with a deadly weapon inflicting serious injury under N.C.G.S. \u00a7 14-32(b) and one count of felonious child abuse inflicting serious physical injury under N.C.G.S. \u00a7 14-318.4 without evidence of serious bodily injury as defined in N.C.G.S. \u00a7 14-32.4 because \u201cserious bodily injury\u201d requires proof of a more severe injury than that required for \u201cserious injury\u201d and \u201cserious physical injury\u201d in the statutes under which defendant was convicted, and the injuries suffered by all the victims clearly fell within the realm of injuries contemplated by the applicable statutes.\nAppeal by defendant from judgment entered 26 September 2001 by Judge David Q. Labarre in Chatham County Superior Court. Heard in the Court of Appeals 17 October 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.\nJohn T. Hall, for de/ewdcmi-appellant." }, "file_name": "0607-01", "first_page_order": 635, "last_page_order": 644 }