                                    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
                                      -2-
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.
                                        -3-
    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.
                                           -4-
      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.
                                         -5-
                               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.
                                        -6-
      “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.”
                                         -7-
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
                                        -8-
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
                                         -10-
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.
                                           -12-
       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
                                -15-
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.
