State v. Martinez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1288
NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 10 CRS 004710
MIGUEL ANGEL MARTINEZ,
Defendant.

Appeal by defendant from judgment entered 29 January 2013

by Judge Paul C. Ridgeway in Wake County Superior Court. Heard

in the Court of Appeals 17 March 2014.

Roy Cooper, Attorney General, by G. Mark Teague, Assistant
Attorney General, and Joseph L. Hyde, Assistant Attorney
General, for the State.

Staples S. Hughes, Appellate Defender, by Jason Christopher
Yoder, Assistant Appellate Defender, for defendant-
appellant.

MARTIN, Chief Judge.

Defendant Miguel Angel Martinez appeals by writ of

certiorari from a judgment entered upon a jury verdict finding

him guilty of assault with a deadly weapon inflicting serious

injury. For the reasons stated herein, we find no error in

defendant’s trial.
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On 26 April 2010, Amy Alperstine was working as a

correctional officer in Unit 1 of Central Prison where defendant

was an inmate. Inmates assigned to Unit 1, the lockup unit,

were given an hour of recreational time in an indoor

recreational cell each day. When an inmate’s recreational time

was over, the inmate was required to turn around and place his

hands behind him through a small passageway in the cell while an

officer handcuffed him. Once the inmate was restrained, the

recreational cell would then be opened and the inmate would be

escorted back to his cell. Alperstine approached defendant’s

recreational cell to escort him back to his cell. As Alperstine

reached out to handcuff defendant, defendant suddenly struck

Alperstine’s left forearm with a razor blade.

Correctional Officer Jeffrey Thayer testified that he was

standing approximately ten feet away when he heard Alperstine

yell that she had been cut. When Officer Thayer went to see

what had happened and saw that Alperstine’s forearm was

bleeding, he told her to leave and seek medical attention.

Correctional Sergeant Kimberly Ross was in the control station

approximately ten to twelve feet away from Alperstine when the

incident occurred. Sergeant Ross testified that after

witnessing the attack and the blood on Alperstine’s arm, she

radioed for assistance and unlocked the door to allow Alperstine
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to leave the block.

Alperstine testified that “[t]here was a lot of blood” and

described the injury as a laceration five centimeters in length

and deep enough to expose the muscle. Following the attack,

Alperstine immediately went to the nurse’s station where a

pressure bandage was applied to the injury to stop the bleeding.

Alperstine was then sent to the emergency room where the

laceration was closed with sixteen stitches and she was tested

for HIV and other blood borne illnesses, given a tetanus shot,

and prescribed pain medication and antibiotics. Although she

was advised not to return to work, Alperstine chose to return to

work the next day and was placed on light duty for the following

two weeks. In the weeks following the attack, Alperstine could

not move or lift anything with her left arm as a result of the

injury, and she testified that, nearly three years later, she

still had a “pretty big scar” on her forearm and experienced

lingering numbness from the scar down to her forefinger and

thumb.

At trial, the razor blade recovered from the recreational

cell as well as photographs of the injury, both before it was

stitched and after the stitches were removed, were introduced

into evidence. On 29 January 2013, the jury convicted defendant

of assault with a deadly weapon inflicting serious injury and he
 -4-
was sentenced to a term of thirty-six to fifty-three months

imprisonment to be served consecutively to his preexisting

sentences. Defendant appeals.

_________________________

Defendant’s written notice of appeal fails to fully comply

with the requirements of Rule 4 of the North Carolina Rules of

Appellate Procedure. Cognizant of the defect in his notice of

appeal, defendant seeks review by petition for writ of

certiorari. In the interest of justice, we exercise our

discretion to allow defendant’s petition for writ of certiorari

pursuant to Rule 21(a)(1) of the North Carolina Rules of

Appellate Procedure. See State v. Hammonds, __ N.C. App. __,

__, 720 S.E.2d 820, 823 (2012) (allowing petition for certiorari

where the defendant lost his direct appeal through no fault of

his own, but rather as result of sloppy drafting of his notice

of appeal by counsel and failure to grant certiorari would be

“manifestly unjust”).

On appeal, defendant argues the trial court erred by: (I)

admitting lay opinion testimony as to the seriousness of

Alperstine’s injury; (II) denying defendant’s motion to dismiss

the charge; and (III) failing to intervene ex mero motu during

the State’s closing arguments.

I.
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Defendant first asserts that the trial court abused its

discretion by allowing the admission of the following testimony

by Sergeant Ross over defense counsel’s objection: “Once I saw

the blood on Ms. Alperstine’s hand, I knew it had to be

serious.” Defendant contends the testimony was improper lay

opinion testimony and prejudicial because it embraced an

ultimate issue in the case and thus supplanted the jury’s role

in determining the seriousness of the injury. We disagree.

We review a trial court’s ruling regarding the

admissibility of lay opinion testimony for an abuse of

discretion. State v. Washington, 141 N.C. App. 354, 362,

540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396,

547 S.E.2d 427 (2001). “[A] lay witness may testify in the form

of an opinion, despite the fact that his opinion may embrace an

ultimate issue to be decided by the jury.” State v. Owen,

130 N.C. App. 505, 515, 503 S.E.2d 426, 432, appeal dismissed

and disc. review denied, 349 N.C. 372, 525 S.E.2d 187–88 (1998);

accord N.C. Gen. Stat. § 8C-1, Rule 704 (2013). Rule 701 of the

North Carolina Rules of Evidence permits lay opinion testimony

where the opinion is rationally based on the witness’s

perception and is helpful to the jury. N.C. Gen. Stat. § 8C-1,

Rule 701 (2013). Admissible lay opinion testimony under this

rule includes shorthand statements of fact. N.C. Gen. Stat.
 -6-
§ 8C-1, Rule 701 official commentary. Our Supreme Court has

defined shorthand statements of fact as “‘instantaneous

conclusions of the mind as to the appearance, condition, or

mental or physical state of persons, animals, and things,

derived from observation of a variety of facts presented to the

senses at one and the same time.’” State v. Braxton, 352 N.C.

158, 187, 531 S.E.2d 428, 445 (2000) (quoting State v.

Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975),

vacated in part on other grounds, 428 U.S. 904, 49 L. Ed. 2d

1210 (1976)), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797

(2001).

Sergeant Ross’s testimony amounted to nothing more than a

shorthand statement of fact based on her observation of the

attack. See id. (characterizing “testimony that the victim’s

screaming sounded like somebody fearing for his life and that

the crime scene was worse than a hog killing” as admissible

shorthand statements of fact). Furthermore, contrary to

defendant’s assertion, it is of no consequence that Sergeant

Ross’s description of the injury as “serious” embraced an

ultimate issue to be decided by the jury. See Owen, 130 N.C.

App. at 515, 503 S.E.2d at 432. We therefore conclude that the

trial court did not abuse its discretion by admitting this

testimony.
 -7-
II.

Defendant next argues the trial court erred in denying his

motion to dismiss the assault with a deadly weapon inflicting

serious injury charge because there was insufficient evidence to

show that the assault inflicted a serious injury. We disagree.

We review a trial court’s denial of a motion to dismiss de

novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007), appeal after remand, 197 N.C. App. 403, 677 S.E.2d 14

(2009) (unpublished). A defendant’s motion to dismiss a charge

on the basis of insufficiency of the evidence should be denied

if “‘there is substantial evidence of each essential element of

the offense charged and of the defendant being the perpetrator

of the offense.’” State v. Garcia, 358 N.C. 382, 412,

597 S.E.2d 724, 746 (2004) (quoting State v. Crawford, 344 N.C.

65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, 543 U.S.

1156, 161 L. Ed. 2d 122 (2005). “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). The evidence is to be considered

“in the light most favorable to the State, and the State

receives the benefit of every reasonable inference supported by

that evidence.” Garcia, 358 N.C. at 412–13, 597 S.E.2d at 746.

The essential elements of assault with a deadly weapon
 -8-
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); accord N.C. Gen. Stat. § 13-32(b) (2013). “Cases

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.” State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d

83, 87 (1994). “Substantial evidence of a serious injury that

is sufficient to survive a motion to dismiss includes, but is

not limited to, evidence of ‘hospitalization, pain, blood loss,

and time lost at work.’” State v. Bagley, 183 N.C. App. 514,

526, 644 S.E.2d 615, 623 (2007) (quoting State v. Woods,

126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997)).

Here, the State presented evidence showing that defendant

assaulted Alperstine with a razor blade and that Alperstine

suffered an injury resulting in blood loss and requiring

immediate medical attention at the emergency room. Although

Alperstine made the personal decision to return to work the day

after the assault, she was required to be on light duty for the

following two weeks. In the weeks following the assault,
 -9-
Alperstine could not move or lift anything with her left arm as

a result of the injury, and, nearly three years later, she still

had a scar on her forearm and experienced lingering numbness

from the scar down to her forefinger and thumb. Viewing this

evidence in the light most favorable to the State, we conclude

that there was substantial evidence of serious injury sufficient

to withstand defendant’s motion to dismiss. The trial court,

therefore, did not err in denying defendant’s motion to dismiss

the assault with a deadly weapon inflicting serious injury

charge.

III.

Finally, defendant argues that portions of the State’s

closing argument were grossly improper. As a result, defendant

contends, the trial court’s failure to intervene ex mero motu to

address the allegedly improper closing remarks constituted

reversible error. We disagree.

Because defendant failed to raise timely objections to the

allegedly improper closing remarks challenged on appeal, our

review is limited to determining “whether the remarks were so

grossly improper that the trial court committed reversible error

by failing to intervene ex mero motu.” State v. Jones, 355 N.C.

117, 133, 558 S.E.2d 97, 107 (2002). “A prosecutor must be
 -10-
allowed wide latitude in the argument of hotly contested cases

and may argue all the facts in evidence and any reasonable

inferences that can be drawn therefrom.” State v. Alford,

339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995). “[I]n order to

constitute reversible error, [a] prosecutor’s remarks must be

both improper and prejudicial.” Jones, 355 N.C. at 133,

558 S.E.2d at 107–08. In determining whether a prosecutor’s

closing remarks were improper, “the remarks must be viewed in

context and in light of the overall factual circumstances to

which they refer.” State v. Alston, 341 N.C. 198, 239,

461 S.E.2d 687, 709 (1995), cert. denied, 516 U.S. 1148,

134 L. Ed. 2d 100, mandamus denied, 472 S.E.2d 334 (1996).

Defendant first contends the prosecutor grossly exaggerated

the extent of Alperstine’s injury and thus made statements

unsupported by the evidence. Defendant takes particular issue

with the prosecutor’s assertion that all of the correctional

officers that testified described Alperstine’s injury as

“bleeding profusely.” We must, however, view the remark in

context. See id. It is evident from the record that the

prosecutor was providing the jury with a summation of the

evidence presented. Immediately before the statement defendant

finds objectionable, the prosecutor asked the jury: “What did

Amy tell you?” In describing her injury, Alperstine testified
 -11-
as follows:

There was a lot of blood. When I finally
got to the emergency room at Wake Tech -- or
at WakeMed, it -- the sides had curled up
away, and I mean, it was gap and you could
see the muscle and everything underneath.
So it was very deep.

Furthermore, while the other officers that testified did not

specifically state that Alperstine’s forearm was bleeding

profusely, they all testified that it was bleeding. The

prosecutor’s remark, therefore, was based on reasonable

inferences drawn from the evidence, and the trial court did not

err by failing to intervene ex mero motu.

Defendant also takes exception to the prosecutor’s remark

describing the injury as “a five-inch laceration,” arguing that

the evidence at trial indicated that the laceration was five

centimeters, not inches, in length. Aside from this one

misstatement, the prosecutor correctly described the injury as

being five centimeters in length several times throughout her

closing remarks. Therefore, when viewed in context of the

prosecutor’s closing argument as a whole, the reference to

inches was an isolated misstatement that did not descend to the

level of gross impropriety as to demand intervention by the

trial court ex mero motu. See Braxton, 352 N.C. at 204,

531 S.E.2d at 455 (“[T]he prosecutor’s one-time description of
 -12-
defendant as ‘that thing’ was not so improper as to require

action by the trial court ex mero motu.”).

Defendant next contends the prosecutor improperly referred

to injuries not suffered by Alperstine, thereby distorting the

evidence and the seriousness of the injury in the following

remarks:

It doesn’t matter that Amy Alperstine wasn’t
killed, or that she didn’t almost die, the
way [defendant] used [the razor blade] could
certainly have caused that kind of thing to
happen. . . . Had he been able to get
closer to her, had some other part of her
body somehow come in contact with him before
her hand, he could have cut her somewhere
else. Had that razor blade gone a bit
deeper, or say, you know, as she approached,
she had her hand out like this, you know,
with the back of her hand facing up. But
say she had reached through the other way,
and she had reached out to him palm up, that
same place on the underside of her arm could
have caused far, far more damage. . . .
Luckily, she was not hurt worse. Luckily,
she didn’t -- it wasn’t the inside of her
wrist and she didn’t almost die. . . .
Clearly, as we’ve discussed already, it
could have been a lot worse. Had her arm
been turned over and that razor blade caught
her down to the muscle as deep as it went on
the top through the bottom, obviously this
could have been much worse.

Defendant, however, fails again to understand the prosecutor’s

argument in its proper context. The remarks defendant

challenges were made in the context of the prosecutor explaining

to the jury that the razor blade was a deadly weapon because of
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the way it was employed by defendant. We therefore conclude

that the remarks stayed within the parameters of a proper

closing argument, because the prosecutor merely sought to

convince the jury that the State had proven all of the elements

of its case against defendant.

Finally, defendant asserts that the prosecutor made

derogatory comments about defense counsel that undermined

defendant’s right to a fair trial. While it is well-settled

that a prosecutor “may not make uncomplimentary comments about

opposing counsel,” State v. Sanderson, 336 N.C. 1, 10,

442 S.E.2d 33, 39 (1994), appeal after remand, 346 N.C. 669,

488 S.E.2d 133 (1997), the prosecutor in this case did no such

thing. Considered in context, the prosecutor’s remarks were

not, as defendant contends, a direct attack on defense counsel,

but rather an attempt to rebut the closing arguments the

prosecutor anticipated defense counsel would make. As a result,

the remarks were well within the bounds of permissible closing

argument and the trial court did not have an obligation to

intervene ex mero motu. See State v. Roache, 358 N.C. 243, 301,

595 S.E.2d 381, 418 (2004) (holding that the trial court did not

err by failing to intervene ex mero motu where the prosecutor

made “shorthand commentary on the arguments presented by defense

counsel during closing statement”).
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No Error.

Judges McGEE and CALABRIA concur.

Report per Rule 30(e).