                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-681

                                Filed: 19 March 2019

Beaufort County, Nos. 14 CRS 50909, 50968

STATE OF NORTH CAROLINA

               v.

MALON KYSHEEF GRIFFIN, Defendant.


         Appeal by defendant from judgments entered 10 January 2018 by Judge

Beecher R. Gray in Beaufort County Superior Court. Heard in the Court of Appeals

27 February 2019.


         Attorney General Joshua H. Stein, by Assistant Attorney General Carole
         Biggers, for the State.

         Anne Bleyman for defendant.


         ARROWOOD, Judge.


         Malon Kysheef Griffin (“defendant”) appeals from judgments entered on his

convictions of felony assault inflicting serious bodily injury and felony breaking and

entering with intent to terrorize or injure. For the reasons stated herein, we find no

error.

                                  I.       Background

         On 14 July 2014, a Beaufort County Grand Jury indicted defendant for felony

assault inflicting serious bodily injury and felony breaking and entering.        On
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16 March 2015, a Beaufort County Grand Jury issued a superseding indictment for

felony breaking and entering with intent to terrorize or injure. On 9 January 2018,

this matter came on for trial in Beaufort County Superior Court, the Honorable

Beecher R. Gray presiding. The State’s evidence tended to show as follows.

       On 24 May 2014, defendant, a mixed martial arts fighter, opened the front door

of Mr. Marcus Frank (“Mr. Frank” or “victim”)’s home, and entered uninvited. Mr.

Frank heard the door open, so he walked towards the front of the house to see who

opened the door, and saw defendant. The two men exchanged words, in reference to

an incident involving defendant’s girlfriend.1 Mr. Frank insisted he was not involved

in the incident, but defendant did not believe Mr. Frank, and hit him in the face.

       The two men started fighting. Defendant threw Mr. Frank over a dog cage.

Mr. Frank attempted to run to the kitchen, but could not get away from defendant,

who was hitting, kneeing, and kicking his face, head, neck, torso, and limbs.

Eventually, Mr. Frank was able to escape to the kitchen. He threw a wooden spoon

at defendant, and defendant fled in a car driven by his girlfriend’s stepfather.

       Mr. Frank contacted his girlfriend, Sherry Bailey (“Ms. Bailey”), who called

911. When law enforcement and medical personnel responded to the call, Mr. Frank

recounted the attack to Officer Christopher Cordina of the Washington Police

Department, identifying defendant as his attacker.


       1 Although the victim and his girlfriend testified there was an ongoing dispute between
defendant’s girlfriend and the victim, the cause of the dispute was never entered into evidence.

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      Mr. Frank reported being unable to swallow, and was diagnosed with a

concussion. He also had numerous lacerations, swelling and bruising on his face, and

wounds on his knees and elbows. Ms. Bailey testified Mr. Frank “looked -- his face

was deformed. He didn’t look like himself, and he had -- where he had been, I guess

maybe on the carpet where he had -- he had blood. Like it was to the white meat.”

      Mr. Frank went to the police station, and Officer Cordina took photographs of

his injuries. Mr. Frank then went to the emergency room. He testified he went to

the hospital because:

               I was in pain, and it was -- it was like really bothering me.
               I had like a serious, serious bad headache, and that
               headache lasted me from like four days from the incident
               happened. And to this day, I'm still like getting like
               migraine headaches. I’m taking 800 ibuprofen, but it
               wears off and it come right back.

      At the close of the State’s evidence, defendant moved to dismiss all charges.

The motion was denied. Defendant presented evidence, and then renewed his motion

to dismiss at the close of all evidence. The trial court denied the motion.

      On 10 January 2018, the jury found defendant guilty as charged. The trial

court sentenced defendant to 16 to 29 months imprisonment for the felony assault

inflicting serious bodily injury conviction, and ordered defendant pay $319.99 in

restitution.   Defendant was sentenced to a consecutive term of 8 to 19 months

imprisonment for the felony breaking and entering conviction.

      Defendant appeals.


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                                   II.    Discussion

      Defendant argues on appeal that the trial court erred by denying his motion to

dismiss both charges, felony assault inflicting serious bodily injury and felony

breaking and entering with intent to terrorize or injure, for insufficient evidence.

      Our “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) (citation omitted).

“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 (citation and internal quotation marks omitted), cert. denied, 531

U.S. 890, 148 L. Ed. 2d 150 (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) (citations omitted).

      “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, 132 L. Ed. 2d 818 (1995).

                A.    Felony Assault Inflicting Serious Bodily Injury



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      Defendant argues the trial court erred by denying his motion to dismiss the

felony assault inflicting serious bodily injury charge because there was insufficient

evidence of a serious bodily injury.

      The elements of felony assault inflicting serious bodily injury are: “(1) an

intentional assault on another person (2) resulting in serious bodily injury.” State v.

Williams, 154 N.C. App. 176, 180, 571 S.E.2d 619, 622 (2002). Pursuant to N.C. Gen.

Stat. § 14-32.4, “Serious bodily injury” is 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 (2017).     “Our courts have

defined serious injury as injury which is serious but falls short of causing death and

have indicated that the element of serious bodily injury requires proof of more severe

injury than the element of serious injury.” Williams, 154 N.C. App. at 181, 571 S.E.2d

at 622 (citation and internal quotation marks omitted).

      In the light most favorable to the State, the victim suffered from difficulty

swallowing, numerous lacerations, a concussion, and severe headaches as a result of

the attack. The victim testified that the headaches continued at least through the

time of trial, which occurred four years after the attack. Therefore, the headaches

constitute a permanent or protracted condition that causes extreme pain.



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Accordingly, we hold the trial court did not err when it denied defendant’s motion to

dismiss the felony assault inflicting serious bodily injury charge.

                         B.     Felony Breaking and Entering

      Next, defendant argues the trial court erred by denying his motion to dismiss

the breaking and entering charge because there was insufficient evidence of an intent

to injure or terrorize the victim.

      Defendant was charged with N.C. Gen. Stat. § 14-54(a1) (2017). Pursuant to

this statute, “[a]ny person who breaks or enters any building with intent to terrorize

or injure an occupant of the building is guilty of a Class H felony.” N.C. Gen. Stat. §

14-54(a1). There are no published cases specifically addressing the sufficiency of

evidence of intent to terrorize or injure under N.C. Gen. Stat. § 14-54(a1). However,

in an unpublished decision, our court held the “evidence was sufficient for the jury to

answer the question of Defendant’s intent to terrorize and injure” the victim where

the defendant and two others “burst through the [victim’s] door without knocking”

and without permission, one of the individuals said “get her” while the defendant was

on top of the victim, the victim was badly beaten without provocation, the victim’s

children witnessed the event and were crying hysterically, and, before the attack, one

of the intruders told the victim’s husband they were going to “get her[.]” State v.




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Walker, __ N.C. App. __, __, 801 S.E.2d 180, __, 2017 WL 2608057, at *4 (2017)

(unpublished).2

       In reaching this decision, the Court emphasized that the intent to terrorize or

injure must exist at the time of entry under N.C. Gen. Stat. § 14-54(a1). Id. at __,

801 S.E.2d at __, 2017 WL 2608057, at *3 (citing State v. Ly, 189 N.C. App. 422, 430,

658 S.E.2d 300, 306 (2008) (“An essential element of the crime is that the intent exist

at the time of the breaking or entering.” (citation and internal quotation marks

omitted)); State v. Costigan, 51 N.C. App. 442, 444, 276 S.E.2d 467, 468 (1981)).

“Intent is a mental attitude and can seldom be proved by direct evidence and is most

often proved by circumstances from which it can be inferred.” Costigan, 51 N.C. App.

at 444, 276 S.E.2d at 468 (internal citations and quotation marks omitted). Thus, a

defendant’s intent at the time of the breaking and entering, “may be inferred from

the acts he committed subsequent to his breaking or entering the building.” State v.

Bowden, 216 N.C. App. 275, 278, 717 S.E.2d 230, 233 (2011) (citation and internal

quotation marks omitted).

       Because our Court has not yet considered what constitutes “intent to terrorize

or injure” under N.C. Gen. Stat. § 14-54(a1) in a published opinion, we look to other

offenses with similar elements for guidance. In Walker, the court considered the

definition of “terrorize” used for the purposes of kidnapping, noting “ ‘terrorize’ has


       2 We address this unpublished and nonprecedential opinion only because it was cited and
discussed in the State’s brief.

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been repeatedly defined for the purposes of kidnapping as, more than just putting

another in fear. It means putting that person in some high degree of fear, a state of

intense fright or apprehension.” Walker, __ N.C. App. at __, 801 S.E.2d at __, 2017

WL 2608057, at *3 (citing State v. Surrett, 109 N.C. App. 344, 349, 427 S.E.2d 124,

127 (1993) (internal citations and quotation marks omitted); State v. Watson, 169

N.C. App. 331, 337-38, 610 S.E.2d 472, 477 (2005) (defining terrorize as “[t]o fill or

overpower with terror; terrify” for the purposes of the felony stalking statute)).

      Furthermore, although there are no decisions in North Carolina addressing

the sufficiency of evidence of an implied intent to injure specifically in the context of

N.C. Gen. Stat. § 14-54(a1), “our Supreme Court has held generally that . . .

constructive intent to injure exists where the actor’s conduct ‘is so reckless or so

manifestly indifferent to the consequences, where the safety of life or limb is involved,

as to justify a finding of [willfulness] and wantonness equivalent in spirit to an actual

intent.’ ” Wilcox v. City of Asheville, 222 N.C. App. 285, 289, 730 S.E.2d 226, 231

(2012) (citation omitted); see State v. Jordan, 59 N.C. App. 527, 529, 296 S.E.2d 823,

825 (1982) (holding that, in the context of felonious burning of personal property,

intent to injure the owner of the property could be inferred based on the “nature of

the act and the manner in which it was done”).

      Here, the State’s evidence tends to show that defendant entered uninvited and

did not announce himself. When Mr. Frank saw defendant, defendant began to argue



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with Mr. Frank because he believed Mr. Frank was involved in an incident with his

girlfriend. Defendant, a mixed martial arts fighter, then proceeded to violently attack

Mr. Frank. The jury could find these circumstances put the victim in a high degree

of fear or that defendant acted so recklessly or manifestly indifferent to the

consequences to the victim that there was constructive intent to injure. Therefore,

we find these acts sufficient to support an inference that defendant entered the

victim’s home with the intent to terrorize or injure Mr. Frank, and we hold the trial

court did not err by denying defendant’s motion to dismiss the breaking and entering

with the intent to terrorize or injure charge.

                                  III.    Conclusion

      For the forgoing reasons, the trial court did not err.

      NO ERROR.

      Judges STROUD and TYSON concur.




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