State v. Wooten ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1255
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Wayne County
No. 11 CRS 55895
SHIYON KANIQUE WOOTEN
Appeal by defendant from judgment entered 25 June 2013 by
Judge Wayland J. Sermons, Jr. in Wayne County Superior
Court. Heard in the Court of Appeals 19 March 2014.
Roy Cooper, Attorney General, by Narcisa Woods, Assistant
Attorney General, for the State.
James W. Carter for defendant-appellant.
DAVIS, Judge.
Defendant Shiyon Kanique Wooten (“Defendant”) appeals from
her conviction for assault with a deadly weapon inflicting
serious injury. On appeal, she contends that the trial court
erred in (1) denying her motion to dismiss; and (2) failing to
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instruct the jury on self-defense. After careful review, we
conclude that Defendant received a fair trial free from error.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 17 November 2011, Defendant and Loreal
Dungee (“Ms. Dungee”) got into an argument near the intersection
of Beech and Daisy Streets in Goldsboro, North Carolina. The
quarrel occurred after Ms. Dungee asked Defendant’s boyfriend,
Chris Bell, if she could use his phone. Ultimately, Defendant
and Ms. Dungee decided to fight. Defendant obtained a kitchen
knife with a four- to five-inch blade from her home and then
returned outside.
Several family members, friends, and other onlookers had
assembled in order to witness the fight, including Reginald
Fields (“Mr. Fields”), Ms. Dungee’s boyfriend. As the two women
approached each other, Defendant pulled out her knife from her
back pocket. Ms. Dungee, upon seeing the knife, turned and
began running away from Defendant. Defendant chased Ms. Dungee
for roughly half a block at which point Ms. Dungee fell.
Defendant then repeatedly stabbed Ms. Dungee while she was lying
on the ground. Ms. Dungee suffered wounds in both thighs and
below her shoulder blade.
Emergency medical personnel were called, and Ms. Dungee was
transported to Wayne Memorial Hospital by ambulance. At the
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hospital, Ms. Dungee was treated by Dr. Stephen Moye (“Dr.
Moye”). Dr. Moye testified at trial that he closed Ms. Dungee’s
stab wounds with seventeen staples and numerous sutures and
prescribed her antibiotics as well as medication for pain and
anxiety.
Officer Edmund Gillette (“Officer Gillette”) of the
Goldsboro Police Department was dispatched to the scene of the
crime shortly after the stabbing occurred. Officer Gillette
interviewed Defendant, who admitted that she and Ms. Dungee had
fought and that she had stabbed Ms. Dungee. While Defendant
told Officer Gillette that Ms. Dungee had been armed with a gun
at the time Defendant stabbed her, Defendant could not offer any
description of the gun. Nor was any gun recovered at the scene.
On 28 November 2011, Ms. Dungee saw Dr. Wendy Cipriani
(“Dr. Cipriani”) for removal of the 17 staples she had received.
Dr. Cipriani testified that Ms. Dungee had developed cellulitis
— indicating that her wounds had become infected. Dr. Cipriani
prescribed Keflex, an antibiotic, for the infection, Hydrocodone
for pain, and Xanax for anxiety.
Defendant testified in her own defense at trial. She
stated that when she came back outside after arming herself with
a knife from her kitchen, she saw Mr. Fields hand Ms. Dungee a
gun. Defendant claimed that, for this reason, she believed that
Ms. Dungee was about to harm her. She explained that “before I
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gave her time to do what she was going to do to me, I ran her
down.”
On 4 February 2013, Defendant was indicted on one count of
assault with a deadly weapon inflicting serious injury. A jury
trial was held in Wayne County Superior Court on 24 June 2013.
Defendant moved to dismiss the charge against her at the close
of the State’s evidence and at the close of all the evidence.
The trial court denied both of her motions. During the charge
conference, Defendant requested a jury instruction on self-
defense. The trial court denied this request.
Defendant was convicted of assault with a deadly weapon
inflicting serious injury. The trial court sentenced Defendant
to 20-33 months imprisonment, suspended the sentence, and placed
Defendant on supervised probation for 24 months. The court
ordered Defendant to serve an active term of five months
imprisonment as special probation pursuant to N.C. Gen. Stat. §
15A-1351. Defendant gave notice of appeal in open court.
Analysis
I. Denial of Motion to Dismiss
Defendant’s first argument is that the trial court erred in
denying her motion to dismiss on the theory that the State did
not provide sufficient evidence that a serious injury was
suffered by Ms. Dungee. We disagree.
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A trial court's denial of a defendant's motion to dismiss
is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). On appeal, this Court must determine
“whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant's being the perpetrator . . . .”
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455
(citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150(2000). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d
164, 169 (1980). Evidence must be viewed in the light most
favorable to the State with every reasonable inference drawn in
the State's favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818(1995).
In order to survive a defendant’s motion to dismiss a
charge of assault with a deadly weapon inflicting serious
injury, the State must produce substantial evidence of each of
the elements of that offense. The statute codifying the crime
of assault with a deadly weapon inflicting serious injury is
N.C. Gen. Stat. § 14-32(b), which provides that “[a]ny person
who assaults another person with a deadly weapon and inflicts
serious injury shall be punished as a Class E felon.” N.C. Gen.
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Stat. § 14-32(b) (2013). “The elements of a charge under G.S. §
14-32(b) are (1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death." State v.
Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812 (2009)
(citation and quotation marks omitted).
Defendant challenges the sufficiency of the State’s
evidence regarding the third element of the offense, contending
that the State failed to introduce sufficient evidence to show
that Defendant inflicted serious injury on Ms. Dungee.
“Serious injury” as employed in G.S. 14-
32(b) means physical or bodily injury
resulting from an assault with a deadly
weapon. The injury must be serious, but
evidence of hospitalization is not required.
The question of whether a serious injury has
occurred is determined by the facts of each
case and is a jury question.
State v. Rotenberry, 54 N.C. App. 504, 511, 284 S.E.2d 197, 201
(1981), cert. denied, 305 N.C. 306, 290 S.E.2d 705 (1982). A
non-exhaustive list of factors for a jury to consider regarding
whether a serious injury has actually occurred for purposes of
N.C. Gen. Stat. § 14-32(b) was set out by this Court in State v.
McLean, 211 N.C. App. 321, 712 S.E.2d 271 (2011):
Our Supreme Court has not defined
serious injury for purposes of assault
prosecutions, other than stating that the
injury must be serious but it must fall
short of causing death and that further
definition seems neither wise nor desirable.
However, several relevant factors that may
guide the determination of whether serious
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injury has been inflicted, includ[e], but
[are] not limited to: (1) pain and
suffering; (2) loss of blood; (3)
hospitalization; and (4) time lost from
work. Notably, this Court has indicated
that competent evidence on any one of these
factors is sufficient in itself to
constitute substantial evidence of serious
injury.
Id. at 325, 712 S.E.2d at 275 (internal citations, quotation
marks, and brackets omitted).
Our appellate courts have recognized that a jury question
will typically exist on this issue in cases where a victim is
injured as a result of an assault with a deadly weapon. See
State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)
(holding that “[c]ases that have addressed the issue of the
sufficiency of evidence of serious injury appear to stand for
the proposition that as long as the State presents evidence that
the victim sustained a physical injury as a result of an assault
by the defendant, it is for the jury to determine the question
of whether the injury was serious”).
At trial, Defendant admitted to stabbing Ms. Dungee
multiple times. It is undisputed that as a result of the stab
wounds she sustained during this incident, Ms. Dungee was taken
by ambulance to the hospital. Evidence was presented that she
was bleeding from her wounds, and Dr. Moye testified that she
received 17 staples and numerous sutures. Dr. Moye also
prescribed Ms. Dungee antibiotics, pain medication, and anxiety
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medication in connection with her injury. Ms. Dungee missed
approximately one week of work after being released from the
hospital. In addition, Dr. Cipriani testified that when Ms.
Dungee came to her office to have the staples removed, she had
developed an infection around her wounds requiring additional
treatment.
We are satisfied that this evidence was sufficient to raise
a factual issue for resolution by the jury as to whether Ms.
Dungee suffered a serious injury for purposes of N.C. Gen. Stat.
§ 14-32(b). Consequently, the trial court did not err in
denying Defendant’s motion to dismiss.
II. Refusal to Instruct Jury on Self-Defense
Defendant’s final argument challenges the trial court’s
denial of her request for a jury instruction on self-defense.
This argument is also without merit.
“Our Court reviews a trial court's decisions regarding jury
instructions de novo.” State v. Cruz, 203 N.C. App. 230, 235,
691 S.E.2d 47, 50, aff’d per curiam, 364 N.C. 417, 700 S.E.2d
222 (2010). We have held that “[a] defendant is entitled to a
jury instruction on self-defense when there is evidence from
which the jury could infer that [s]he acted in self-defense.”
State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206
(1998). “In determining whether the self-defense instruction
should have been given, the facts are to be interpreted in the
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light most favorable to the defendant.” State v. Moore, 111
N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993) (citation,
quotation marks, and brackets omitted).
There are two types of self-defense, perfect
self-defense, which consists of the
following four elements, and imperfect self-
defense, which consists of only the first
two elements:
(1) it appeared to defendant and
he believed it to be necessary to
kill the [victim] in order to save
himself from death or great bodily
harm; and
(2) defendant's belief was
reasonable in that the
circumstances as they appeared to
him at that time were sufficient
to create such a belief in the
mind of a person of ordinary
firmness; and
(3) defendant was not the
aggressor in bringing on the
affray, i.e., he did not
aggressively and willingly enter
into the fight without legal
excuse or provocation; and
(4) defendant did not use
excessive force, i.e., did not use
more force than was necessary or
reasonably appeared to him to be
necessary under the circumstances
to protect himself from death or
great bodily harm.
Therefore, for defendant to be entitled
to an instruction on self-defense, the
following questions must be answered
affirmatively: (1) Is there evidence that
the defendant in fact formed a belief that
it was necessary to kill his adversary in
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order to protect himself from death or great
bodily harm, and (2) if so, was that belief
reasonable?
State v. Meadows, 158 N.C. App. 390, 401, 581 S.E.2d 472, 478
(internal citations and quotation marks omitted), appeal
dismissed and disc. review denied, 357 N.C. 467, 586 S.E.2d 774(2003).
In her brief, Defendant attempts to show her entitlement to
a self-defense instruction by pointing to her own testimony that
she saw Mr. Fields hand Ms. Dungee a gun. No corroborating
evidence was offered to show that Ms. Dungee ever possessed a
gun during this incident, and Defendant was unable to provide a
description of the alleged gun to police officers during her
questioning shortly after the incident. Mr. Fields testified at
trial that he did not give Ms. Dungee a gun at any point during
or immediately preceding the fight. Furthermore, no witnesses
testified to seeing Ms. Dungee with a gun.
In Meadows, the defendant waited on his ex-girlfriend’s
porch with a gun drawn. Id. at 393, 581 S.E.2d at 474. The
defendant testified that when he saw his ex-girlfriend and her
date (the victim) approach, he walked up behind the victim and
saw the victim “pulling from his crotch area” and that he “saw
something shine.” Id. at 402, 581 S.E.2d at 479. The defendant
then proceeded to shoot the victim in the head. The defendant
argued that based upon his testimony, the jury should have been
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instructed on self-defense. Id., at 401-02, 581 S.E.2d at 479.
We rejected this argument, stating that
where the record was totally void of any
evidence supporting defendant's self-serving
claim that he believed the other person was
reaching for a weapon, the Court may hold
defendant's belief was not objectively
reasonable and that the trial court properly
refused to instruct the jury on self-
defense. Accordingly, under the facts of
this case, we hold the trial court did not
err in failing to instruct the jury on self-
defense.
Id. at 402, 581 S.E.2d at 479 (citation and quotation marks
omitted); see also State v. Bush, 307 N.C. 152, 159-60, 297
S.E.2d 563, 568-69 (1982) (holding that self-serving statements
by defendant that he was “nervous” and “afraid” of victim before
stabbing was not, without more, sufficient basis for jury
instruction on self-defense).
Here, we believe the trial court properly denied
Defendant’s request for an instruction on self-defense. In
addition to the absence of any evidence supporting her own
assertion that she saw Mr. Fields hand Ms. Dungee a gun, the
undisputed evidence showed that Defendant chased Ms. Dungee down
after Ms. Dungee had abandoned the confrontation upon seeing
Defendant brandish her knife. Indeed, Ms. Dungee began fleeing
down the street and was chased by Defendant for approximately
half a block before Defendant caught up with her and began
stabbing her after Ms. Dungee had fallen to the ground. No
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evidence was offered that Ms. Dungee was holding — or reaching
for — a weapon at the time Defendant stabbed her.
We conclude that Defendant failed to demonstrate that she
formed a reasonable belief that it was necessary for her to use
deadly force against Ms. Dungee in order to protect herself from
death or great bodily harm. Accordingly, the trial court did
not err in denying Defendant’s request for an instruction on
self-defense.
Conclusion
For the reasons stated above, we hold that Defendant
received a fair trial free from error.
NO ERROR.
Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).