State v. Worth ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate
Procedure.
NO. COA14-959
NORTH CAROLINA COURT OF APPEALS
Filed: 17 March 2015
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 09 CRS 4712, 50188
ROBIN OTTO WORTH, JR.
Appeal by Defendant from judgment entered 30 April 2014 by
Judge Mark E. Klass in Rowan County Superior Court. Heard in the
Court of Appeals 23 February 2015.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amy Bircher, for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for Defendant.
STEPHENS, Judge.
Defendant Robin Otto Worth, Jr., appeals from the judgment
entered after a jury found him guilty of assault with a deadly
weapon inflicting serious injury, and he thereupon pled guilty to
having attained habitual felon status. Defendant contends the
trial court committed plain error by failing to instruct the jury
on the lesser-included offense of assault with a deadly weapon.
We find no error.
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On 31 December 2008, Michael Kirksey and Defendant’s mother,
who were involved in a romantic relationship, got into an argument
at a New Year’s Eve party. At some point after midnight,
Defendant’s mother called him and asked him to come and get her
from Kirksey’s home. Kirksey was sitting on his front porch while
Defendant’s mother waited to be picked up. Three men, including
Defendant, arrived and attacked Kirksey. Defendant kicked and
punched Kirksey, and then hit him with a metal folding chair.
At least one of the blows struck Kirksey in the head and broke
his jaw. However, because Kirksey did not initially realize the
severity of the injury to his jaw, he did not seek medical
treatment for several days. An emergency room doctor later
provided Kirksey with crutches to cope with the effects of the
injury. Kirksey had surgery on his jaw about a week after the
incident. His jaw was wired shut for about six weeks, and he could
not eat solid food during that time. At trial, Defendant
stipulated that Kirksey received medical treatment for a fractured
jaw on 9 January 2009.
The jury found Defendant guilty of assault with a deadly
weapon inflicting serious injury, and Defendant pled guilty to
having attained habitual felon status. The trial court sentenced
Defendant to 107 to 138 months in prison. Defendant appeals.
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Defendant’s sole argument on appeal is that the trial court
committed plain error by failing to submit the lesser-included
offense of assault with a deadly weapon to the jury, contending
that Kirksey’s failure to seek immediate medical treatment was
substantial evidence that Kirksey did not suffer a serious injury.
We disagree.
Defendant concedes he did not request additional jury
instructions and that we must, therefore, review the trial court’s
instructions for plain error. See N.C.R. App. P. 10(a)(4). “For
error to constitute plain error, a defendant must demonstrate that
a fundamental error occurred at trial. To show that an error was
fundamental, a defendant must establish prejudice — that, after
examination of the entire record, the error had a probable impact
on the jury’s finding that the defendant was guilty.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation
and internal quotation marks omitted). “Moreover, because plain
error is to be applied cautiously and only in the exceptional case,
the error will often be one that seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings[.]” Id.(citation and internal quotation marks omitted). “Where the
evidence is sufficient to support the offense submitted to the
jury, it is not plain error for the trial court to refuse to submit
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a lesser charge.” State v. Wright, 210 N.C. App. 52, 68, 708
S.E.2d 112, 124 (citation omitted), disc. review denied, 365 N.C.
200, 710 S.E.2d 9 (2011).
“The elements of [assault with a deadly weapon inflicting
serious injury] are (1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death.” State v.
Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990). In
considering whether an assault victim suffered a serious injury,
“[p]ertinent factors for jury consideration include
hospitalization, pain, blood loss, and time lost at work.” Wright,
210 N.C. App. at 69, 708 S.E.2d at 124 (citation and internal
quotation marks omitted).
We find the pertinent factors here extremely similar to those
we addressed in rejecting the same argument in Wright. In that
case, the defendant hit the victim in the head and knee with a
lead pipe. Id. at 69, 708 S.E.2d at 125. The victim ran to a
neighbor’s house to call 911, but only later realized she was
unable to walk normally. Id. When she was taken to the hospital,
the victim received treatment for contusions and bruises and was
on crutches for more than a week. Id. at 69-70, 708 S.E.2d at
125. This Court held that the trial court did not commit plain
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error by not submitting the lesser-included charge of assault with
a deadly weapon to the jury. Id. at 70, 708 S.E.2d at 125.
Here, the evidence tended to show that Defendant punched and
kicked Kirksey, and struck him in the face with a metal folding
chair. Kirksey testified that he felt the blow Defendant struck
to his jaw with the chair, but did not immediately appreciate the
seriousness of his injuries and did not seek medical care until a
few days later. When he did obtain medical care, Kirksey was
issued crutches and required surgery on his broken jaw. His jaw
was then wired shut for six weeks. Moreover, Defendant stipulated
that Kirksey received treatment for a fractured jaw. Here, as in
Wright, our review of the record fails to convince us that, absent
the alleged instructional error, the jury would have reached a
different result. Accordingly, we find
NO ERROR.
Chief Judge MCGEE and Judge HUNTER, JR. concur.
Report per Rule 30(e).