{ "id": 8240467, "name": "STATE OF NORTH CAROLINA v. SAMPSON BRUNSON", "name_abbreviation": "State v. Brunson", "decision_date": "2006-11-07", "docket_number": "No. COA05-1486", "first_page": "188", "last_page": "195", "citations": [ { "type": "official", "cite": "180 N.C. App. 188" } ], "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": "173 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353346 ], "opinion_index": -1, "case_paths": [ "/nc-app/173/0270-01" ] }, { "cite": "629 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635728, 12635727 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0276-02", "/se2d/629/0276-01" ] }, { "cite": "619 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633948 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "415", "parenthetical": "citations omitted" }, { "page": "416", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0410-01" ] }, { "cite": "616 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633573 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "509", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, Fair v. North Carolina, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)" }, { "page": "509-10" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0500-01" ] }, { "cite": "624 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634818 ], "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0309-01" ] }, { "cite": "409 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "318", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510833 ], "year": 1991, "pin_cites": [ { "page": "53", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0038-01" ] }, { "cite": "128 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "3" }, { "page": "3" } ], "opinion_index": 0 }, { "cite": "258 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559589 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "91" }, { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0089-01" ] }, { "cite": "450 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "471", "parenthetical": "quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)" } ], "opinion_index": 0 }, { "cite": "338 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519966 ], "year": 1994, "pin_cites": [ { "page": "507", "parenthetical": "quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0502-01" ] }, { "cite": "51 S.E. 801", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "139 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653049 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/139/0537-01" ] }, { "cite": "307 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763204, 4760983, 4764155, 4760764, 4759869 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0463-03", "/nc/309/0463-01", "/nc/309/0463-02", "/nc/309/0463-04", "/nc/309/0463-05" ] }, { "cite": "301 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523179 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0610-01" ] }, { "cite": "411 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524176 ], "year": 1991, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0766-01" ] }, { "cite": "530 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078470 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0037-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491752, 491593, 491723, 491412, 491647, 491485, 491839 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-06", "/nc/357/0168-03", "/nc/357/0168-02" ] }, { "cite": "569 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249135 ], "year": 2002, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0203-01" ] }, { "cite": "391 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524487 ], "year": 1990, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0358-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "360 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788898, 3788997, 3787498, 3794954, 3794412, 3796880, 3788340, 3786168, 3795771 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0293-01", "/nc/360/0293-03", "/nc/360/0293-02", "/nc/360/0293-09", "/nc/360/0293-07", "/nc/360/0293-04", "/nc/360/0293-05", "/nc/360/0293-06", "/nc/360/0293-08" ] }, { "cite": "164 L. Ed. 2d 528", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "359 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803668 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "752", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, Fair v. North Carolina, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)" }, { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0741-01" ] }, { "cite": "139 L. Ed. 2d 878", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1096", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11610818, 11610434, 11610661, 11610951, 11610539, 11610860, 11610635, 11610607, 11610708, 11610905, 11610583, 11610744, 11610457, 11610492 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1096-11", "/us/522/1096-01", "/us/522/1096-08", "/us/522/1096-14", "/us/522/1096-04", "/us/522/1096-12", "/us/522/1096-07", "/us/522/1096-06", "/us/522/1096-09", "/us/522/1096-13", "/us/522/1096-05", "/us/522/1096-10", "/us/522/1096-02", "/us/522/1096-03" ] }, { "cite": "490 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "347 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551122 ], "year": 1997, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0048-01" ] }, { "cite": "524 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "807", "parenthetical": "quoting State v. Adams, 347 N.C. 48, 68, 490 S.E.2d 220, 230 (1997), cert. denied, Adams v. North Carolina, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998)" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240832 ], "year": 2000, "pin_cites": [ { "page": "523", "parenthetical": "quoting State v. Adams, 347 N.C. 48, 68, 490 S.E.2d 220, 230 (1997), cert. denied, Adams v. North Carolina, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0520-01" ] }, { "cite": "360 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789879 ], "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0181-01" ] }, { "cite": "554 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138404, 138314, 138383, 138482, 138297 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0222-05", "/nc/354/0222-02", "/nc/354/0222-01", "/nc/354/0222-04", "/nc/354/0222-03" ] }, { "cite": "550 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "202" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433790 ], "year": 2001, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0267-01" ] }, { "cite": "173 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353346 ], "weight": 2, "pin_cites": [ { "page": "279", "parenthetical": "citations omitted" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0270-01" ] }, { "cite": "619 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633948 ], "year": 2005, "pin_cites": [ { "page": "415", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/se2d/619/0410-01" ] }, { "cite": "528 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "899", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 1 }, { "cite": "351 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155854 ], "year": 2000, "pin_cites": [ { "page": "584-85", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0576-01" ] }, { "cite": "173 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353346 ], "pin_cites": [ { "page": "279", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc-app/173/0270-01" ] } ], "analysis": { "cardinality": 839, "char_count": 16974, "ocr_confidence": 0.751, "pagerank": { "raw": 4.850989108749841e-07, "percentile": 0.9325646012566756 }, "sha256": "f4d0605372b2ef8975e737935b3b87c375960aab4de67b4657c453b11ecf67fd", "simhash": "1:178cc128661a5df8", "word_count": 2799 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge ELMORE concurs in part and dissents in part with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. SAMPSON BRUNSON" ], "opinions": [ { "text": "McGEE, Judge.\nSampson Brunson (Defendant) was a next-door neighbor of the alleged victim in this case in March 2003. Defendant and the victim had lived next to one another for about a year. They had a friendly and familiar relationship. At trial, the victim testified that she thought of Defendant as a \u201cgrandfather figure,\u201d and that Defendant was \u201csweet,\u201d \u201cfriendly,\u201d and \u201cnice\u201d to her children. The victim also stated that Defendant frequently drove her to work. In contrast, Defendant testified at trial that in addition to their relationship as neighbors and friends, he and the victim had eventually begun a sexual relationship.\nIt is undisputed that on 15 March 2003, Defendant picked up the victim from work. The victim testified that when Defendant picked her up, he was upset because a woman he cut grass for had not paid him enough, and that he was also mad because the victim had neglected to call Defendant the night before. The victim stated that Defendant continued to mutter for some time, and then pulled out a silver-colored gun, putting it to the victim\u2019s head as he continued to drive. Eventually, around dusk, the victim stated that Defendant drove into a deserted area that appeared to be out \u201cin the wilderness.\u201d The victim testified that after driving down an isolated road, Defendant forced her out of the truck and began beating her with his hands and feet. The victim stated she suffered \u201cpain ... all over.\u201d Defendant later forced the victim back into the truck, at which time she lost her hair bow.\nThe victim testified that Defendant then drove farther into the woods, and in the process, broke off a side mirror of his truck on a tree limb. She further testified that Defendant parked the truck and demanded that she take off her clothes. The victim refused to do so, and Defendant tore off her clothes. Defendant began to kiss and fondle the victim, eventually penetrating her with his penis by force.\nThe victim stated that Defendant then apologized, but said he would have to kill her to avoid going back to jail. In response to the victim\u2019s pleas, Defendant changed his mind and told her that he loved her. The victim said she and Defendant then got back into the truck. They drove to her mother\u2019s house, where they picked up her son. Defendant then drove the victim and her son home.\nThe victim told no one of the incident for the next two days. On 17 March 2003, the victim went to work and confided in her sister, who worked at the same place. Her sister took her to the hospital, where a full rape kit was performed and where the victim was interviewed by police.\nPolice took the victim the following day back to the scene of the crime, where they discovered physical evidence including her lost hair bow, pieces of the truck\u2019s mirror and reflector lights, and a matchbook cover. Police arrested Defendant on 18 March 2003.\nDefendant was convicted of first-degree rape, possession of a firearm by a felon, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and being a violent habitual felon. Defendant appeals.\nDefendant first contends the trial court erred by failing to declare a mistrial upon the victim\u2019s declaration on direct examination that Defendant had shot his first wife. This contention is without merit.\nThe victim, in response to the question, \u201cWhat did you say\u201d replied, in part, \u201cAnd I think [Defendant] thought I was his ex-wife, the first lady, you know, that he shot.\u201d Defense counsel immediately objected, and the trial court told the jury to disregard the answer. Despite this instruction to disregard, Defendant moved for a mistrial following a recess. After considerable discussion, the trial court denied Defendant\u2019s motion, and defense counsel excepted to the trial court\u2019s ruling.\n\u201cWhether or not to declare a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a gross abuse of such discretion.\u201d State v. Bidgood, 144 N.C. App. 267, 273, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). \u201cThus, a mistrial should not be allowed unless \u2018 \u201cthere are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant\u2019s case and make it impossible for the defendant to receive a fair and impartial verdict.\u201d \u2019 \u201d State v. Hurst, 360 N.C. 181, 188, 624 S.E.2d 309, 316 (citations omitted), cert. denied, Hurst v. North Carolina, \u2014 U.S. -, - L. Ed. 2d - (2006); see also N.C. Gen. Stat. \u00a7 15A-1061 (2005) (requiring \u201csubstantial and irreparable prejudice to the defendant\u2019s case\u201d for a mistrial).\nWe cannot say the trial court grossly abused its discretion in this case. As the trial court noted in denying Defendant\u2019s motion for a mistrial, the jury was immediately instructed to disregard the comment. \u201c \u2018When the trial court instructs the jury not to consider incompetent evidence, any prejudice is ordinarily cured.\u2019 \u201d State v. Robinson, 136 N.C. App. 520, 523, 524 S.E.2d 805, 807 (2000) (quoting State v. Adams, 347 N.C. 48, 68, 490 S.E.2d 220, 230 (1997), cert. denied, Adams v. North Carolina, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998)). Defendant does not show how he was substantially and irreparably harmed by the testimony. Although he asserts the evidence may have \u201ctipped the balance against him,\u201d there is no indication the jury was unable to disregard the testimony as instructed by the trial court. We therefore find no merit in Defendant\u2019s first assignment of error.\nDefendant next contends his trial counsel provided ineffective assistance by calling several character witnesses to testify to Defendant\u2019s good character, which allowed the State to question the witnesses about the highly prejudicial nature of Defendant\u2019s prior convictions. As Defendant acknowledges, however, this claim is properly brought in a motion for appropriate relief. \u201c \u2018[Such claims] brought on direct review will be decided on the merits [only] when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u2019 \u201d State v. al-Bayyinah, 359 N.C. 741, 752, 616 S.E.2d 500, 509 (2005) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, Fair v. North Carolina, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)), cert. denied, al-Bayyinah v. North Carolina, - U.S. -, 164 L. Ed. 2d 528 (2006). Although Defendant argues the present case can be decided on the merits without further investigation, we disagree. In the present case, more information is needed to determine the reasons for defense counsel\u2019s strategy, and we therefore dismiss this issue without prejudice to Defendant\u2019s right to file a motion for appropriate relief. See al-Bayyinah, 359 N.C. at 753, 616 S.E.2d at 509-10 (holding that \u201c[t]rial counsel\u2019s strategy and the reasons therefor are not readily apparent from the record, and more information must be developed to determine [the issue]. Therefore, this issue is dismissed without prejudice to [the] defendant\u2019s right to raise this claim in a post-conviction motion for appropriate relief.\u201d).\nFinally, Defendant contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. Defendant argues there was insufficient evidence to support his conviction.\nThis Court has recently considered a very similar case, in which we stated:\nWhen ruling on a motion to dismiss, the trial court must \u201c \u2018consider whether the State has presented substantial evidence of each essential element of the crime charged.\u2019 \u201d The trial court further must interpret the evidence in the light most favorable to the State, \u201cdrawing all reasonable inferences in the State\u2019s favor.\u201d\nState v. Lawson, 173 N.C. App. 270, 279, 619 S.E.2d 410, 415 (2005) (citations omitted), disc. review denied, 360 N.C. 293, 629 S.E.2d 276 (2006). In Lawson, this Court also dealt with a motion to dismiss a charge of assault with a deadly weapon inflicting serious injury. The Lawson court listed the essential elements of the crime: \u201cBy statute, the essential elements of assault with a deadly weapon with intent to inflict serious injury are (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; (4) not resulting in death.\u201d Id. at 279, 619 S.E.2d at 415-16 (citing N.C. Gen. Stat. \u00a7 14-32(b) (2004); State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990)). In his brief, Defendant attacks two of these elements: the requirement of a deadly weapon and the infliction of serious injury.\nAs in the present case, the defendant in Lawson argued that his hands and feet could not be considered deadly weapons. The Lawson court disagreed, noting this Court\u2019s previous decisions holding that \u201ca defendant\u2019s fists can be considered a deadly weapon depending on the manner in which they were used and the relative size and condition of the parties.\u201d Lawson, 173 N.C. App. at 279, 619 S.E.2d at 416 (emphasis omitted) (citing State v. Rogers, 153 N.C. App. 203, 211, 569 S.E.2d 657, 663 (2002), disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003); State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000); State v. Grumbles, 104 N.C. App. 766, 771, 411 S.E.2d 407, 410 (1991); State v. Jacobs, 61 N.C. App. 610, 301 S.E.2d 429, disc. review denied, 309 N.C. 463, 307 S.E.2d 368 (1983); State v. Archbell, 139 N.C. 537, 51 S.E. 801 (1905)). Defendant concedes there was great disparity in height between Defendant and the victim. Defendant, at 6'5\", stands afoot and a half taller than the victim, who is 4T1\". Defendant argues, however, that there is nothing in the record to indicate their respective weights. Moreover, he argues that the jury, having received the trial court\u2019s original instruction to \u201cconsider the nature of the size of the fists, the manner in which they were used, and the size and strength of [Defendant] as compared to [the victim] [,]\u201d asked the trial court for further instruction. The trial court responded, \u201cThere\u2019s no formula. It\u2019s just a question of evaluating those things and making a factual decision in light of your reason and common sense as to whether [Defendant] used his hands and fists as a deadly weapon.\u201d Though Defendant argues the trial court\u2019s response left the jury to decide the issue without any meaningful guidance, we disagree. The jury was given the proper standard, as outlined in Lawson. In keeping with its role as finder of fact, the jury came to the conclusion that, in this case, Defendant\u2019s hands were deadly weapons.\nDefendant also argues that the State failed to carry its burden to provide substantial evidence of the element of serious injury. The North Carolina Supreme Court \u201chas not defined \u2018serious injury\u2019 for purposes of assault prosecutions, other than stating that \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 State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) (quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). \u201cWhether such serious injury has been inflicted must be determined according to the particular facts of each case.\u201d Jones, 258 N.C. at 91, 128 S.E.2d at 3.\nTurning to the facts of the present case, Defendant notes that the victim did not seek medical treatment for two days, and then only at the insistence of her sister and a co-worker. However, the victim testified that she felt \u201cpain . .. . all over\u201d during the beating, and the record shows that she suffered bruising, swelling, and scratches. It is for the jury to decide whether such evidence constitutes serious injury. \u201cA jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious. Evidence that the victim was hospitalized, however, is not necessary for proof of serious injury.\u201d State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991) (citations omitted). In this case, the jury heard injury evidence from the nurse examiner and from police. The witnesses observed that the victim had swollen, black eyes; bruises on her neck, arms, back and inner thighs; and redness on her vagina. The jury also heard the victim\u2019s testimony that she suffered \u201cpain ... all over\u201d as a result of the beating.\nWe find there was sufficient evidence to submit this charge to the jury in light of the amount of evidence in the record as to injury, and the fact that our common law does not otherwise define \u201cserious injury\u201d but l\u00e9aves it to the jury to decide under appropriate instructions from the trial court. Considering the evidence in the light most favorable to the State, the evidence was sufficient for the jury to find that Defendant assaulted the victim with a deadly weapon and inflicted serious injury. The trial court did not err in denying Defendant\u2019s motion to dismiss.\nBased on the foregoing analysis, we find no error in Defendant\u2019s convictions.\nNo error.\nJudge BRYANT concurs.\nJudge ELMORE concurs in part and dissents in part with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "ELMORE, Judge,\nconcurring in part and dissenting in part.\nI concur in the majority opinion that there was no error in defendant\u2019s convictions for First-Degree Rape, Possession of a Firearm by a Felon, First-Degree Kidnapping, and being a Violent Habitual Felon. However, I respectfully dissent from that part of the majority opinion holding that the State met its burden of showing substantial evidence of serious injury. Because I believe that no such substantial evidence was presented, I would vacate defendant\u2019s Assault with a Deadly Weapon Inflicting Serious Injury conviction.\nAs noted in the majority opinion, \u201cWhen ruling on a motion to dismiss, the trial court must consider whether the State has presented substantial evidence . . . State v. Lawson, 173 N.C. App. 270, 279, 619 S.E.2d 410, 415 (2005) (emphasis added). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Whether evidence presented constitutes substantial evidence is a question of law for the court.\u201d State v. Frogge, 351 N.C. 576, 584-85, 528 S.E.2d 893, 899 (2000) (quotations and citations omitted).\nI find it noteworthy that the State failed even to argue this point in its brief. Ostensibly, the State seeks to rely on bruises, swelling, and scratches, along with the victim\u2019s testimony that she felt \u201cpain all over,\u201d to establish that the victim suffered a serious injury. I would hold that, as a matter of law, such paltry evidence cannot constitute that which \u201ca reasonable mind might accept as adequate to support a conclusion\u201d of serious injury. Id.\nBecause I would not find that substantial evidence of serious injury was presented to the trial court, I respectfully dissent from that part of the majority opinion that would uphold defendant\u2019s conviction for Assault with a Deadly Weapon Inflicting Serious Injury.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.", "Paul F. Herzog for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMPSON BRUNSON\nNo. COA05-1486\n(Filed 7 November 2006)\n1. Criminal Law\u2014 mistrial denied \u2014 victim mentioning prior crime\nThe trial court did not abuse its discretion by not declaring a mistrial in a prosecution for rape, assault, and other crimes after the victim testified that defendant had shot his first wife. The jury was immediately instructed to disregard the comment and there is no indication that it was unable to do so.\n2. Criminal Law\u2014 effectiveness of counsel \u2014 motion for appropriate relief\nA contention that trial counsel was not effective should have been raised in a motion for appropriate relief. It was remanded for further investigation.\n3. Assault\u2014 hands as deadly weapons \u2014 sufficiency of evidence\nThere was sufficient evidence to support a charge of assault with a deadly weapon, inflicting serious injury where defendant argued that his hands and feet, with which he committed the assault, were not deadly weapons. Although defendant argued that there was no evidence of the weight of defendant or of the victim, the jury was given the proper standard for determining the issue, as outlined in State v. Lawson, 173 N.C. App. 270.\n4. Assault\u2014 seriousness of injury \u2014 sufficiency of evidence\nThere was sufficient evidence of the seriousness of the victim\u2019s injury in a prosecution for assault with a deadly weapon inflicting serious injury where the jury heard evidence from the victim about her pain \u201call over\u201d as a result of the beating, and from a nurse examiner and the police about black eyes, bruises, and redness on the vagina.\nJudge Elmore concurring in part and dissenting in part.\nAppeal by Defendant from judgments dated 22 April 2005 by Judge Catherine C. Eagles in Superior Court, Guilford County. Heard in the Court of Appeals 16 August 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.\nPaul F. Herzog for Defendant-Appellant." }, "file_name": "0188-01", "first_page_order": 218, "last_page_order": 225 }