An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
                                            -2-
          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.
                                   -3-
     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
                                  -4-
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
                                -5-
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).
