State v. Jamison

NO. COA13-1328

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Cleveland County
Nos. 12 CRS 54858–60
GARRY JEROME JAMISON

Appeal by defendant from judgments and commitments entered

12 April 2013 by Judge J. Thomas Davis in Cleveland County

Superior Court. Heard in the Court of Appeals 10 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Patrick S. Wooten, for the State.

Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Paul M. Green, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Garry Jerome Jamison (“Defendant”) appeals from judgments

and commitments adjudging him guilty of first degree burglary,

assault inflicting serious bodily injury, and assault on a

female. Defendant contends that the trial court erred in

denying his motion to dismiss the charges of assault inflicting

serious bodily injury and first degree burglary. Defendant also

contends that the trial court erred in allowing him to be

convicted of both assault inflicting serious bodily injury and
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assault on a female based on the same underlying conduct. For

the following reasons, we hold that the trial court properly

denied Defendant’s motion to dismiss, but erred in convicting

and sentencing Defendant for both categories of assault.

I. Factual & Procedural History

The facts of Defendant’s case are not in dispute. Evidence

presented at trial showed the following.

In April or May of 2012, Defendant’s nine year relationship

with his then-girlfriend, Amber Price, ended. During their

relationship, Defendant and Ms. Price had two children together.

After their break-up, Defendant moved out and interacted with

Ms. Price only to arrange visitation with the children.

On 25 August 2012, however, Defendant telephoned Ms. Price

repeatedly in order to see her the following day, Ms. Price’s

birthday. Ms. Price refused to see Defendant and told him that

she was spending time at her parents’ house with the children.

That evening, while the children were with their grandparents,

Ms. Price went to celebrate her birthday at her best friend

Brittney Stevens’ house. In addition to Ms. Price and Ms.

Stevens, Ms. Stevens’ two children and the children’s father

were present at the home.
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Around 11:40 p.m., Defendant called Ms. Price demanding

that she come get him and spend time with him for her birthday.

Ms. Price again refused. Defendant told Ms. Price that if he

found out that she was not at home with the children, he would

kill her. While Ms. Price believed Defendant’s threat to be

credible, she remained at the party because she did not think

Defendant knew that she was at Ms. Stevens’ home. Ms. Price’s

testimony revealed, however, that she often celebrated her

birthday with Ms. Stevens, a fact that was well-known by

Defendant.

Sometime around midnight, Ms. Price heard a voice she

recognized as Defendant’s shouting profanities and making noise

outside of Ms. Stevens’ home. Upon hearing Defendant’s voice,

Ms. Price immediately attempted to close the front door to keep

Defendant out of the house. Testimony indicated that the screen

door was already closed, but not the front door itself. While

Ms. Price attempted to close the front door, Defendant forced

his way through the door and entered the home. Ms. Price,

fearful for her life, attempted to run from Defendant, but could

not escape. Defendant grabbed Ms. Price by the hair, knocked

her to the ground, and began to beat her.
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Meanwhile, Ms. Stevens took her two children and placed

them in her car, where they remained with their father during

the incident. While outside, Ms. Stevens heard Ms. Price

screaming for help. Ms. Stevens went back into the house and

attempted to place herself between Defendant and Ms. Price.

Defendant continued to kick and beat Ms. Price, but did not harm

Ms. Stevens. After the beating, Defendant told Ms. Stevens that

it was nothing against her or her family, but that Ms. Price was

a “lying bitch.” Thereafter, Defendant left the premises and

Ms. Stevens called the police. Defendant was subsequently

arrested on 6 September 2012.

On 11 and 12 April 2013, Defendant was tried in Cleveland

County Superior Court on charges of first degree burglary,

assault inflicting serious bodily injury, and assault on a

female. Defendant was convicted of all three crimes. The trial

court sentenced Defendant to an active sentence of 64–89 months

imprisonment for the first degree burglary. With respect to the

assault convictions, Defendant received an additional

consecutive sentence of 16–29 months imprisonment, which was

suspended by the trial court for 36 months of supervised

probation. Defendant gave timely notice of appeal in open

court.
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II. Jurisdiction

Defendant’s appeal from the superior court’s final

judgments lies of right to this Court pursuant to N.C. Gen.

Stat. §§ 7A-27(b), 15A-1444(a) (2013).

III. Analysis

Defendant challenges the trial court’s judgments with three

arguments on appeal: (1) that there was insufficient evidence of

a “serious bodily injury” presented at trial to support the

charge of assault inflicting serious bodily injury; (2) that

there was insufficient evidence of a “breaking” to support the

charge of first degree burglary; and (3) that the trial court

erred in entering a judgment for assault inflicting serious

bodily injury and for assault on a female based on the same

underlying conduct. We address each of Defendant’s arguments in

turn.

A. Evidence Supporting a “Serious Bodily Injury”

Defendant contends that the trial court erred in denying

his motion to dismiss the charge of assault inflicting serious

bodily injury because the evidence presented at trial was not

sufficient to show that Ms. Price, in fact, suffered a “serious

bodily injury.” We disagree.
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“This Court reviews the 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). “‘Upon defendant’s motion for dismissal,

the question for the Court is 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 of such offense. If so, the motion is

properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890 (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). “In

making its determination, the trial court must consider all

evidence admitted, whether competent or incompetent, in the

light most favorable to the State, giving the State the benefit

of every reasonable inference and resolving any contradictions

in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d

211, 223 (1994), cert. denied, 515 U.S. 1135 (1995).

The crime of assault inflicting serious bodily injury

requires a showing of two elements: “(1) the commission of an

assault on another, which (2) inflicts serious bodily injury.”
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State v. Williams, 150 N.C. App. 497, 501, 563 S.E.2d 616, 619

(2002) (quotation marks and citation omitted). Pertinent here,

the General Assembly has defined a “serious bodily injury” as a

“bodily injury that creates a substantial risk of death, or that

causes serious permanent disfigurement, coma, a permanent or

protracted condition that causes extreme pain, or permanent or

protracted loss or impairment of the function of any bodily

member or organ, or that results in prolonged hospitalization.”

N.C. Gen. Stat. § 14-32.4 (2013). In interpreting this

statutory language, we have previously held that “the General

Assembly intended for N.C.G.S. § 14-32.4 to cover those assaults

that are especially violent and result in the infliction of

extremely serious injuries.” Williams, 150 N.C. App. at 503,

563 S.E.2d at 619. Thus, a “serious bodily injury” as set forth

in N.C. Gen. Stat. § 14-32.4 “requires proof of more severe

injury than the ‘serious injury’ element of other assault

offenses.” Id. at 503, 563 S.E.2d at 619–20.

Accordingly, our task in reviewing the record below is to

determine whether there is substantial evidence that Ms. Price

suffered an injury rising to this level of severity. However,

in making this determination, we do not consider the entire

definition set forth in N.C. Gen. Stat. § 14-32.4. Rather, “we
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are limited to that part of the definition set forth in the

trial court’s instructions to the jury.” Id. at 503, 563 S.E.2d

at 620. Here, the trial court instructed the jury as follows:

Serious bodily injury is injury that creates
or causes a permanent or protracted
condition that causes extreme pain or
permanent or protracted loss or impairment
of the functions of any bodily member or
organ.

“It is well settled that a defendant may not be convicted of an

offense on a theory of guilt different from that presented to

the jury.” Id. Thus, we limit our review to the evidence

presented at trial that supports the definition of “serious

bodily injury” given to the jury.

Viewing the evidence presented at trial in a light most

favorable to the State, we hold that there is substantial

evidence that Ms. Price suffered a “serious bodily injury” from

Defendant’s assault. Ms. Price testified that the beating left

her with broken bones in her face, a broken hand, a cracked

knee, and an eye so beat up and swollen that she still could not

see properly out of it at the time of trial. She indicated that

she had a footprint and other bruises on her face, as well as

bruises on her neck, stomach, and back. Ms. Price testified

that she had “been stomped everywhere.” She reported having to

go back to the hospital for a second time because of pain and
 -9-
dizziness. She indicated that her pain lasted for five to six

weeks after the attack and that she still had pain in her hand.

She stated, “my hand and my eye hurt all of the time.”

Photographs of Ms. Price’s injuries were also admitted into

evidence to supplement her testimony.

Brittney Stevens also testified concerning Ms. Price’s

injuries. Ms. Stevens indicated that the beating left Ms. Price

bloody at the scene of the crime. Ms. Stevens reported that Ms.

Price wore sunglasses for several weeks to hide bruising and

black eyes.

Ms. Price’s mother corroborated the testimony given by Ms.

Price and Ms. Stevens and added that Ms. Price had bloodshot

eyes and a tooth filling that came loose as a result of the

beating. The mother also stated that Ms. Price had trouble

writing with her injured hand. Joseph Mullen, Ms. Price’s

emergency room physician, characterized Ms. Price’s injuries as

“serious.”

We believe the foregoing evidence to be more than

sufficient to withstand a motion to dismiss. This evidence,

particularly Ms. Price’s ongoing trouble with her hand and eye,

provides substantial evidence of a “permanent or protracted

condition that causes extreme pain” and a “permanent or
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protracted loss or impairment of the functions of a bodily

member or organ.” Accordingly, Defendant’s argument is without

merit.

B. Evidence Supporting a “Breaking”

Defendant’s second argument on appeal is that there was

insufficient evidence of a “breaking” presented at trial to

withstand a motion to dismiss on the charge of first degree

burglary.

Again, in reviewing the sufficiency of the evidence on a

motion to dismiss, our task is to determine whether, when viewed

in a light most favorable to the State, there is substantial

evidence of each element of the offense charged. Fritsch, 351

N.C. at 378, 526 S.E.2d at 455.

To warrant a conviction for burglary the
State’s evidence must show that there was a
breaking and entering during the nighttime
of a dwelling or sleeping apartment with
intent to commit a felony therein. If the
burglarized dwelling is occupied it is
burglary in the first degree; if unoccupied,
it is burglary in the second degree.

State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976)

(internal citations omitted); see also N.C. Gen. Stat. § 14-51

(2013). Furthermore, “[i] f any force at all is employed to

effect an entrance through any usual or unusual place of

ingress, whether open, partly open, or closed, there is a
 -11-
breaking sufficient in law to constitute burglary, if the other

elements of the offense are present.” Wilson, 289 N.C. at 539,

223 S.E.2d at 316 (quotation marks and citations omitted).

Here, uncontroverted testimony at trial established that

the screen door was closed and that Ms. Price was attempting to

close the front door when Defendant forced his way into the

home. Pursuant to Wilson, we hold that this testimony provides

substantial evidence that a “breaking” occurred.

Defendant acknowledges that this controlling precedent

warrants our holding on this issue. Nevertheless, Defendant

wishes to preserve this argument for a later appeal to our

Supreme Court. Accordingly, we find no error in the trial

court’s first degree burglary judgment and note Defendant’s

objection for purposes of later appellate review.

C. Judgments and Commitments for Two Categories of Assault

Defendant’s third argument on appeal is that the trial

court erred when it sentenced Defendant for assault inflicting

serious bodily injury and assault on a female based on the same

underlying conduct. Specifically, Defendant argues that the

plain language of our assault statutes mandates punishment only

for the more serious crime.
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At the outset, we acknowledge that “[i]n order to preserve

a question for appellate review, a party must have presented the

trial court with a timely request, objection or motion, stating

the specific grounds for the ruling sought if the specific

grounds are not apparent.” State v. Eason, 328 N.C. 409, 420,

402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(a)(1).

Here, Defendant admits that he did not object to the trial court

entering a consolidated judgment and commitment for both

assaults. However, “‘[w]hen a trial court acts contrary to a

statutory mandate, the defendant’s right to appeal is preserved

despite the defendant’s failure to object during trial.’” State

v. Braxton, 352 N.C. 158, 177, 531 S.E.2d 428, 439 (2000)

(quoting State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815

(2000)), cert. denied, 531 U.S. 1130 (2001). Accordingly,

because Defendant contends that the trial court erred in its

interpretation and application of statutory provisions, we

review the merits of Defendant’s argument notwithstanding his

failure to object at trial.

“Issues of statutory construction are questions of law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010). “‘Under a de novo review, the

court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” State v. Williams, 362
 -13-
N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens

of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319

(2003)).

Assault on a female is a statutory crime in North Carolina:

Unless the conduct is covered under some
other provision of law providing greater
punishment, any person who commits any
assault, assault and battery, or affray is
guilty of a Class A1 misdemeanor if, in the
course of the assault, assault and battery,
or affray, he or she:

. . . .

(2) Assaults a female, he being a male
person at least 18 years of age[.]

N.C. Gen. Stat. § 14-33(c) (2013) (emphasis added). Defendant

argues that the plain language of the prefatory clause contained

in this statute, i.e., “[u]nless the conduct is covered under

some other provision of law providing greater punishment,”

reveals an intent by our General Assembly to limit a trial

court’s authority to impose punishment for assault on a female

when punishment is also imposed for higher class offenses that

apply to the same conduct. Here, because Defendant was also

convicted and sentenced for assault inflicting serious bodily

injury, a felony, Defendant argues that he should not be

punished for committing an assault on a female. Compare N.C.

Gen. Stat. § 14-33(c) (classifying assault on a female as a
 -14-
Class A1 misdemeanor), with N.C. Gen. Stat. § 14-32.4

(classifying assault inflicting serious bodily as a Class F

felony). We agree.

As our Supreme Court has stated,

[t]he intent of the Legislature controls the
interpretation of a statute. When a statute
is unambiguous, this Court will give effect
to the plain meaning of the words without
resorting to judicial construction.
[C]ourts must give [an unambiguous] statute
its plain and definite meaning, and are
without power to interpolate, or
superimpose, provisions and limitations not
contained therein.

State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010)

(second and third alterations in original) (internal quotation

marks and citations omitted).

Here, Defendant’s interpretation of the assault on a female

statute comports with its plain language. The prefatory clause

unambiguously bars punishment for assault on a female when the

conduct at issue is punished by a higher class of assault.

Furthermore, this interpretation is consistent with previous

decisions of our appellate courts dealing with other statutes

that contain identical prefatory language. See, e.g., id. at

304–05, 698 S.E.2d at 69–70 (collecting cases).

Accordingly, because Defendant was convicted and sentenced

for both categories of assault in the court below, the trial
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court acted contrary to the statutory mandate of N.C. Gen. Stat.

§ 14-33(c).

IV. Conclusion

For the foregoing reasons, we arrest judgment in 12 CRS

54858 (assault on a female) and remand for resentencing in 12

CRS 54860 (assault inflicting serious bodily injury).

Otherwise, we find no error.

Judgment Arrested and Remanded in part; No Error in part.

Judges STROUD and DILLON concur.