An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
                                               -2-
       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
                                        -3-
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.
                                            -5-
      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
                                           -13-
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”).
                         -14-
No Error.

Judges McGEE and CALABRIA concur.

Report per Rule 30(e).
