An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-719
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 11 CRS 218625—28, 218636—
                                              39, 218666, 218672
KIDADA SHIDEEAH LOTT and JOSE
ROBERTO VALENTINE


      Appeal by defendants from judgments entered 21 September

2012 by Judge Paul C. Ridgeway in Wake County Superior Court.

Heard in the Court of Appeals 8 January 2014.


      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General M. A. Kelly Chambers, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Kathleen M. Joyce, for defendant-appellant Jose
      Roberto Valentine.

      Kimberly P. Hoppin for defendant-appellant Kidada Shideeah
      Lott.


      BRYANT, Judge.


      Where there was sufficient evidence presented at trial to

support a jury instruction on the theory of aiding and abetting,

the trial court did not err in its instruction.                  Where defendant

Valentine’s trial counsel conceded to the jury, with Valentine’s
                                   -2-
consent, that Valentine was guilty of misdemeanor breaking and

entering, the concession was not         Harbison error.    Where the

trial court instructed the jury that a gunshot wound from a

bullet passing through the victim’s buttock and out the front of

his thigh was a serious injury, we find no error.

     The evidence presented tended to show that on the evening

of   9   August   2011,   Robert   Wright,   Camille   Perry,     Britney

Montgomery, Belinda Montgomery, and Crystal Daniel were in a

house located at 11 Maywood Avenue in Raleigh.         In addition to

the above-named adults, there were seven children present, all

under the age of nine years.        Over the course of the evening,

Crystal and Britney went to bed, as did all seven children.

Belinda, Camille, and Robert stayed up playing cards.           Two times

that night, Robert stepped outside to smoke.       The first time at

2:00 a.m., he noticed that an SUV drove by twice.          The second

time at 3:00 a.m., Robert observed the same vehicle drive down

Maywood Avenue, then park diagonally across from the house.            He

noted the vehicle lights were turned off but the engine was

still running.    No one exited the vehicle at that time.         Fifteen

to twenty minutes later, the vehicle was still sitting there.

Between 3:30 and 4:00 a.m., Robert called for a ride to take him

home.    When Robert saw his ride drive by, he flicked the lights
                                          -3-
to identify the house.           As he stepped out of a side door, he was

shot.     Robert then ran to the car waiting to give him a ride

home and told the driver to take him to the hospital.                        In route

to the hospital, Robert reported the shooting to the Raleigh

Police Department, which dispatched law enforcement officers to

meet    him   at     WakeMed   Hospital.         Robert   described    the    SUV   he

observed sitting across from 11 Maywood Avenue as a grey Dodge

Durango.

       Crystal testified that she was in her bed when Belinda and

Camille ran into her room screaming.                    She heard a man’s voice

tell Britney to get out and go into the room with Crystal,

Britney,      and    Camille.      When    Britney        walked   into    Crystal’s

bedroom, Crystal recognized the man with Britney and noted that

he   held     a     handgun.     Crystal        later   identified    the     man   as

defendant     Jose     Roberto   Valentine.         Valentine      asked    for   each

woman’s name and then grabbed Crystal, saying “Yeah, you the one

I want.”          A gunshot was fired in the hallway and Valentine

pulled Crystal out of her bedroom, where she observed two more

men.     “One of them was just big and tall, the one that was

standing at the door. The other guy, he was just a regular size

person [less than six feet tall].”                  All of the intruders wore

dark clothes and other than Valentine, wore masks covering their
                                               -4-
faces.     Valentine threatened Crystal and warned her not to call

the police.      Then he and the two other men left the house taking

a Playstation III video game system.

       Officer Michael Keon, a patrolman with the Raleigh Police

Department, was patrolling the southeast district of Raleigh on

the    evening    of    9       August   2011.        After       hearing   reports        of   a

shooting at 11 Maywood Avenue, he proceeded in the direction of

that residence.             The dispatcher provided the description of a

suspect    vehicle,         a    grey    SUV     –    Dodge      Durango.      Within       two

minutes, Officer Keon observed what he described as a silver

Dodge    Durango       at    the    intersection           of    Raleigh    Boulevard       and

Martin Luther King Blvd.                 The Durango was the only other car on

the road.        Officer Keon followed the SUV until additional law

enforcement officers could provide assistance, then conducted a

stop.     The driver was a female later identified as defendant

Kidada Shideeah Lott.               There were three male passengers in the

SUV,    including       defendant        Valentine.             One   passenger     fled    the

scene     upon    the       vehicle       stop       but    was       apprehended    shortly

thereafter.       Inside the vehicle, law enforcement officers found

a ski mask, latex gloves, and two firearms.

       Defendant Kidada Shideeah Lott was indicted on charges of

robbery with a dangerous weapon, first-degree burglary, assault
                                               -5-
with a deadly weapon with intent to kill inflicting serious

injury,       and   discharging       a   weapon      into    an   occupied       dwelling.

Defendant       Jose      Roberto    Valentine        was    indicted     on     charges     of

discharging         a    weapon    into   an    occupied      dwelling,        first-degree

burglary, robbery with a dangerous weapon, assault with a deadly

weapon with intent to kill inflicting serious injury, two counts

of assault with a deadly weapon, two counts of possession of a

firearm       by    a    convicted    felon,         and    possession      of    a    stolen

firearm.       The State thereafter dismissed both counts of assault

with a deadly weapon against Valentine but subsequently issued a

superseding         indictment      against      Valentine      for   possession        of    a

firearm by a convicted felon.

         The cases against Lott and Valentine were joined for trial.1

Trial commenced in Wake County Superior Court during the 11

September       2012      session    with      the   Honorable     Paul     C.    Ridgeway,

Judge presiding.

         At   the   close     of    the   State’s      evidence,      the      trial    court

allowed Valentine’s motion to dismiss the charge of possession

of   a    stolen        firearm.     During      closing      arguments,         Valentine’s



1
   Initially, co-defendants Jimmie Cornelius and Hakim Lamar
Jacobs were joined for trial with Lott and Valentine. However,
while the record is not clear as to the disposition of the cases
involving Cornelius and Jacobs, only the joined cases involving
Lott and Valentine were tried before a jury.
                                         -6-
attorney    conceded    to     the   jury    that   Valentine   was   guilty     of

possession of a firearm by a felon, was present during the home

invasion, and was guilty of misdemeanor breaking and entering.

      The jury returned the following verdicts.                 Lott was found

guilty     of   robbery       with   a      dangerous   weapon,    first-degree

burglary, and assault with a deadly weapon inflicting serious

injury;     Valentine was found guilty of first-degree burglary,

robbery with a dangerous weapon, assault with a deadly weapon

inflicting serious injury, and possession of a firearm by a

convicted felon.        Both Lott and Valentine were found not guilty

of discharging a weapon into occupied property.

      In accordance with the jury verdict against Lott, the trial

court entered a consolidated judgment on the charges of robbery

with a dangerous weapon and first-degree burglary, imposing a

sentence of 73 to 100 months, and as to the charge of assault

with a deadly weapon inflicting serious injury, a consecutive

term of 29 to 44 months.             In accordance with the jury verdict

against Valentine, the trial court sentenced him to a term of 78

to 103 months on the charge of first-degree burglary, 30 to 45

months on the charge of robbery with a dangerous weapon, and 30

to   45   months   on   the    consolidated      charges   of   assault   with   a
                                        -7-
deadly   weapon     inflicting    serious     injury       and       possession         of   a

firearm by a felon, all to be served consecutively.

      Lott and Valentine appeal.

                      ___________________________________

                                      Lott’s appeal

      Lott argues that the trial court erred by instructing the

jury on the theory of aiding and abetting, contending there was

insufficient       evidence      to     support         such     an         instruction.

Specifically, Lott contends the State’s evidence was sufficient

to   show   only    her   presence     in   the    SUV    sometime          after       three

perpetrators invaded a home but was insufficient to establish

that she intended to aid in the commission of any crime.                                     We

disagree.

      The   trial     court    instructed         the    jury        on    all     of    the

substantive offenses including robbery with a dangerous weapon,

first-degree       burglary,     and    assault         with     a        deadly    weapon

inflicting serious injury.             The jury was also instructed that

“[a] person who aids and abets another to commit a crime is

guilty of that crime” and further instructed on the requirements

for finding guilt beyond a reasonable doubt based on a theory of

aiding and abetting.
                                 -8-
    We note that during the charge conference, Lott accepted

the trial court’s proposal to instruct the jury on the theory of

aiding and abetting with regard to the charges against Lott:

           [The Court]: The State has indicated that it
           is asking to not include instructions on
           acting in concert with respect to Defendant
           Lott and only give the instructions on
           aiding and abetting. I do agree that it
           certainly is less confusing to have only
           that instruction.
           Do either of you wish to be heard on that?

           [Defense counsel for Lott]: No, Your Honor.
           I'll accept that.

The trial court thereafter gave the above mentioned instructions

on the substantive offenses as well as instructions on aiding

and abetting.   Following the trial court’s instructions to the

jury, Lott raised no objection to the instructions as given.

    In a criminal case, an issue not preserved by objection

noted at trial may be made the basis of an issue presented on

appeal when the judicial action in question is specifically and

distinctly contended to amount to plain error.      N.C. R. App. P.

10(a)(4)   (2014).    “[P]lain   error   analysis   is   limited   to

reviewing jury instructions and evidentiary matters.”       State v.

Ross, 207 N.C. App. 379, 386—87, 700 S.E.2d 412, 418 (2010)

(quoting State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39—40

(2002)) (quotations omitted); see also State v. Jaynes, 342 N.C.
                                      -9-
249,   276,    464   S.E.2d   448,    465   (1995)   (reviewing     the   trial

court’s jury instruction for plain error).

              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. 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.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotations omitted).

       Our Supreme Court has previously approved a jury charge

setting forth the three criteria for finding a defendant guilty

of a crime on the theory of aiding and abetting:               “(1) that the

crime was committed by another; (2) that the defendant knowingly

advised, instigated, encouraged, procured, or aided the other

person;   and    (3)   that   the    defendant's     actions   or   statements

caused or contributed to the commission of the crime by the

other person.”       State v. Francis, 341 N.C. 156, 161, 459 S.E.2d

269, 272 (1995) (citation omitted); see also State v. Lyles, 19

N.C. App. 632, 636, 199 S.E.2d 699, 702 (1973) (“The driver of a

getaway car is present at the scene of the crime, and he is a
                                      -10-
principal rather than an accessory before the fact.                Therefore,

there is no error in . . . the court's instructing the jury on

aiding and abetting.”).

       The State’s evidence was sufficient to support the trial

court’s instruction on aiding and abetting.             On the evening in

question, Robert Wright observed a grey Dodge Durango drive by

11 Maywood Avenue at least two times between 2:00 and 3:30 a.m.

Then, between 3:30 and 4:00 a.m., Wright observed this vehicle

park   across   the   street,   and   turn   its   lights   off,   while   the

engine kept running.      As Wright stepped outside of his friends’

home to wait for his ride, he was shot by someone in the SUV.

Thereafter, three men wearing dark clothes, two of whom wore

masks, entered 11 Maywood Avenue with at least two firearms.

One of the firearms discharged while defendant Valentine was

holding another firearm in a bedroom containing the three women.

The men fled after taking a video game system and warning the

occupants not to call the police.

       Officer Keon was     patrolling Raleigh’s southeast district

when he learned of the reported shooting at 11 Maywood Avenue

and received the description of a suspect vehicle, a grey SUV

Dodge Durango.        Officer Keon began to head toward 11 Maywood

Avenue when he encountered what he described as a silver Dodge
                                          -11-
Durango.       Approximately two minutes elapsed between the time

Officer Keon received the report of a shooting at 11 Maywood

Avenue along with a description of the suspect vehicle and when

he spotted the vehicle.           He saw no other vehicles on the road in

the   interim.       Officer     Keon     stopped     the    SUV.         Lott   was     the

driver.      In response to Officer Keon’s question as to how many

people      were    in   the    vehicle,       “she       told   me   just       her     two

brothers[,]” when in fact there were three passengers in the

vehicle.      “And then I also asked her if there were any weapons

in the vehicle, and she said no.”                     Suddenly, the front seat

passenger opened the door and ran.                  Lott started the vehicle as

if    to    drive   away;    however,     on     Officer     Keon’s   command,          Lott

immediately turned the vehicle off and threw the keys outside.

In    the    SUV,   police     officers    found      a    black    ski    mask,       latex

gloves, and two firearms.

       Considering the temporal proximity between the shooting at

11 Maywood Avenue and Officer Keon’s observation of the suspect

vehicle in the vicinity of the shooting, along with the fact

that no other vehicles were on the road in those early morning

hours, coupled with the fact that four individuals were in the

car – three of whom were men – and three men were reported to be

involved in the home invasion, and that Lott participated as the
                                             -12-
driver    of   what     appeared        to    be     the    getaway    car    and     gave

misleading responses to inquiries as to the number of people in

the SUV and the presence of weapons, this evidence was more than

sufficient     to   support       the    trial      court’s    instruction       on   the

theory    of   aiding       and   abetting.          See     id.      Accordingly,     we

overrule Lott’s argument.

                                    Valentine’s appeal

    Valentine         first       argues      that     he     received       ineffective

assistance of counsel.              Specifically, Valentine contends he is

entitled to a new trial because                     defense counsel committed a

Harbison error during closing arguments by admitting Valentine

was guilty of misdemeanor breaking and entering.                      We disagree.

    Appellate assessments of ineffective assistance of counsel

claims involve mixed questions of law and fact. Strickland v.

Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 700 (1984). We

review the questions of law de novo. State v. Williams, 362 N.C.

628, 632, 669 S.E.2d 290, 294 (2008). "Under a de novo review,

the court considers the matter anew and freely substitutes its

own judgment for that of the lower tribunal." Id. at 632—33, 669

S.E.2d at 294. We review questions of fact to determine if the

finding is supported by competent evidence. Pineda-Lopez v. N.C.

Growers   Ass'n,      151    N.C.    App.     587,    589,    566   S.E.2d     162,   164
                                          -13-
(2002).

       Pursuant      to   the    United    States        Constitution,        “[i]n    all

criminal prosecutions, the accused shall enjoy the right to . .

.     have the Assistance of Counsel for his defence.”                        U.S. CONST.

amend. VI.        Pursuant to our North Carolina Constitution, “[i]n

all criminal prosecutions, every person charged with crime has

the right to . . . have counsel for defense . . . .”                          N.C. CONST.

art.     I,   §   23.      Our    Supreme        Court    has     “conclude[d]         that

ineffective assistance of counsel, per se in violation of the

Sixth Amendment, has been established in every criminal case in

which the defendant's counsel admits the defendant's guilt to

the jury without the defendant's consent.”                       State v. Harbison,

315    N.C.   175,      180,    337   S.E.2d      504,    507—08        (1985).        “The

practical effect is the same as if counsel had entered a plea of

guilty without the client’s consent. Counsel in such situations

denies    the     client’s      right   to   have        the    issue    of    guilt    or

innocence decided by a jury.”                Id. at 180, 337 S.E.2d at 507

(citation omitted).             This is true even              when defense counsel

concedes the defendant’s guilt to either the charged offense or

a lesser-included offense.                State v. Matthews, 358 N.C. 102,

109, 591 S.E.2d 535, 540 (2004) (Our Supreme Court granted the

defendant a new trial on the charge of first-degree murder where
                                         -14-
defense counsel conceded the defendant’s guilt to the charge of

second-degree murder and the jury returned a verdict of guilty

to the charge of first-degree murder.                  “Harbison requires that

the decision to concede guilt to a lesser included crime ‘be

made exclusively by the defendant.’” (citation omitted)); see

also State v. Maready, 205 N.C. App. 1, 695 S.E.2d 771 (2010)

(reviewing     whether    defense       counsel’s     argument     admitting      the

defendant’s     guilt    to    a    lesser-included         offense    amounted     to

Harbison error).

      However, where defendant allows counsel to concede guilt to

a crime, no Harbison violation occurs.                  See State v. Johnson,

161 N.C. App. 68, 77—78, 587 S.E.2d 445, 451 (2003) (“Although

the   better   practice       would   be     for   defense   counsel    to   make   a

record of a defendant's consent to concessions or admissions of

guilt prior to making those concessions . . . we conclude that

the    trial    court's        inquiry       [following       defense      counsel’s

concession of guilt] was adequate to establish that defendant

had previously consented to his counsel's concession that he was

present and had fired the shots that killed three people and

wounded a fourth.”).

      Here,    following      the     jury    voir   dire    but   prior     to   the

presentation of evidence, Valentine’s defense counsel brought to
                               -15-
the court’s attention that Harbison issues would likely arise

during trial.    The trial court engaged in the following inquiry

of Valentine:

         [Valentine’s defense counsel]: Yes, sir, and
         I apologize not to bring this up before the
         jury came in. There are some Harbison issues
         in this case. I anticipate admitting to the
         jury and arguing to the jury that they
         should be free to find certain elements, and
         included among those basically I think I'm
         going to admit that he was in that house,
         that identity is not an issue in this
         particular case. While I'm not prepared at
         this point to say that they've met any of
         the charges that are actually against him,
         potentially lesser included charges would
         include misdemeanor breaking and entering,
         second   degree  trespassing,  communicating
         threats, among other things that are not
         necessarily lesser includeds, but that I'm
         going to be admitting to the jury that they
         would probably be able to find beyond a
         reasonable doubt and I would ask the Court
         to inquire from my client whether -- whether
         the Court's comfortable with him and whether
         I have his consent to do that.

         THE COURT: Mr. Valentine, if you could stand
         for me for a moment I need to discuss this
         matter with you.

         . . .

         Your attorney has indicated to me that as a
         matter of strategy he is going to be
         admitting to this jury that perhaps certain
         elements of the offenses have been met and
         that they can assume those to be true. Do
         you understand that?

         DEFENDANT VALENTINE: Yes, I do.
                    -16-


THE COURT: And as I understand it, in
particular, he is intending to inform the
jury that you were present at the house
located at [11 Maywood Avenue] on the night
in question.

DEFENDANT VALENTINE: Yes.

. . .

THE   COURT:  And  he   is  also   going  to
acknowledge that your identity as a person
who was at the scene of these alleged crimes
is also not an issue. Do you understand
that?

DEFENDANT VALENTINE: Yes.

. . .

THE COURT: And that by your attorney's
acknowledging or informing the jury that
these issues are not in dispute, he's in
effect removing the state's obligation to
prove these matters beyond a reasonable
doubt. Do you understand that?

DEFENDANT VALENTINE: Yes, I do.

. . .

THE COURT: Now, have you had an opportunity
to fully discuss the strategic choice that
your attorney is making with him?

DEFENDANT VALENTINE: Yes.

THE COURT: And do you consent to the
strategic choice that your attorney is
making?

DEFENDANT VALENTINE: Yes, I do.
                                          -17-
(Emphasis added).

       Before     the     jury     during     closing       argument,     Valentine’s

defense counsel made the following concession:

             The good news for your conscience is you're
             going to get to find him guilty of some
             stuff. . . .

             If you are not convinced, fully convinced
             and entirely satisfied, that the intention
             when they broke into that house was to shoot
             her or was to steal from them, then you get
             to find him guilty of misdemeanor breaking
             and entering. If you are intellectually
             honest with yourself, with each other, if
             you do your job the way you promised that
             you would, [that is the charge] you find him
             guilty of.

(Emphasis added).

       In accordance with Valentine’s acknowledgment, as presented

to   the   trial       court   prior     to   the     presentation      of    evidence,

defense counsel admitted Valentine’s guilt after the close of

the evidence to misdemeanor breaking and entering, a lesser-

included offense of first-degree burglary, the offense for which

defendant was indicted. See State v. Patton, 80 N.C. App. 302,

305,   341      S.E.2d    744,     746   (1986)       (misdemeanor      breaking     and

entering is a lesser-included offense of first-degree burglary).

Therefore, where the trial court made a                       Harbison       inquiry of

Valentine       and    Valentine     indicated        his   understanding       of   and

consent    to    the     defense    strategy     of    admitting     to   misdemeanor
                                       -18-
breaking and entering, this does not constitute error.                 This was

not Harbison error and is not ineffective assistance of counsel

per se.     For the foregoing reasons, we               overrule     Valentine’s

argument.     See Johnson, 161 N.C. App. at 77—78, 587 S.E.2d at

451.

                                     Serious injury

       Valentine     next    argues    that   the   trial    court    erred   by

instructing    the    jury    over    Valentine’s     objection    that   Robert

Wrights’ injury, a          single gunshot wound to the buttocks and

upper thigh, was a serious injury.            We disagree.

       We review challenges to jury instructions de novo.                  State

v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009)

(citations omitted).

                 [Our Supreme Court] has not defined
            “serious injury” for purposes of assault
            prosecutions, other than stating that the
            injury must be serious but it must fall
            short of causing death and that further
            definition seems neither wise nor desirable.
            Whether “serious injury” has been inflicted
            must be decided on the facts of each case.

State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994)

(citations and quotations omitted).

       Valentine was indicted on assault with a deadly weapon with

intent to kill inflicting serious injury in violation of General

Statutes, section 14-32(a).           “The essential elements of assault
                              -19-
with a deadly weapon with intent to kill      inflicting serious

injury are: (1) an assault, (2) with a deadly weapon, (3) with

intent to kill, (4) inflicting serious injury, (5) not resulting

in death.”   State v. McLean, 211 N.C. App. 321, 324, 712 S.E.2d

271, 275 (2011) (citation and quotations omitted).

    After the close of the evidence, the trial court instructed

the jury as follows:

         The defendant Jose Roberto Valentine has
         been charged with assault with a deadly
         weapon   with  intent   to kill  inflicting
         serious injury.      For you to find the
         defendant guilty of this offense, the State
         must prove four things beyond a reasonable
         doubt.

         First, that the defendant      assaulted    the
         victim,    Robert     Lamont    Wright,      by
         intentionally shooting him.

         Second, that the defendant used a       deadly
         weapon. A handgun is a deadly weapon.

         Third, the State must prove that the
         defendant
         had the specific intent to kill the victim.
         . . .

         And, fourth, that the defendant inflicted
         serious injury. A gunshot wound to the
         buttock and upper thigh is a serious injury.

         . . .

         If you find from the evidence beyond a
         reasonable doubt that on or about the
         alleged date the defendant, acting either by
         himself   or  acting  together   with  other
                                    -20-
              persons, intentionally shot the victim,
              Robert Lamont
              Wright,   with    a   handgun   and   that the
              defendant    or   a   person   with   whom the
              defendant was in concert with intended to
              kill the victim and did seriously injure
              him, it would be your duty to return a
              verdict of guilty. If you do not so find or
              have a reasonable doubt as to one or more of
              these things, you will not return a verdict
              of guilty of assault with a deadly weapon
              with intent to kill inflicting serious
              injury   but    would   consider   whether the
              defendant is guilty of assault with a deadly
              weapon inflicting serious injury.

(Emphasis added).

              The serious injury element of N.C. Gen.
              Stat. § 14–32 [(“Felonious assault with
              deadly weapon with intent to kill or
              inflicting serious injury; punishments”)]
              means a physical or bodily injury. . . .
              Among the factors that have been deemed
              relevant in determining whether serious
              injury has been inflicted are: (1) pain and
              suffering;   (2)   loss    of   blood;   (3)
              hospitalization; and (4) time lost from
              work. . . . The 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. Walker, 204 N.C. App. 431, 446—47, 694 S.E.2d 484, 494—

95   (2010)    (citations   and   quotations   omitted).   In   State   v.

Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991), our Supreme Court
                                     -21-
found    merit     in   the   reasoning     of   this    Court       in     State    v.

Pettiford, 60 N.C. App. 92, 298 S.E.2d 389 (1982), considering

whether a trial court could peremptorily instruct a jury on the

serious injury element of an assault charge under N.C.G.S. § 14–

32.     Hedgepeth, 330 N.C. at 54, 409 S.E.2d at 318.                     Our Supreme

Court held that “[i]n the absence of conflicting evidence, a

trial judge may instruct the jury that injuries to a victim are

serious as a matter of law if reasonable minds could not differ

as to their serious nature.”         Id. at 54, 409 S.E.2d at 318—19.

      Here, the evidence is undisputed that Robert                        suffered a

gunshot wound that extended from his buttock through the front

of his thigh.        Robert testified that he jumped from the pain and

ran to the car to carry him to the hospital.                   “I showed him all

the   blood    and    stuff   everywhere.   That's      when    he   knew     it    was

serious. He got on the gas a little more, you know?”

              Q.     What kind of treatment did you                  get
                     while you were at the hospital?

              A.     Um, it was just in and out. Hit no
                     bones or nothing so they just flushed
                     it, packed it, a little gauze stuff,
                     ran water through it.

              Q.     Did it hurt?

              A.     Yeah. I just left on my own.

              Q.     Pardon me?
                                 -22-
           A.    I just left. Stayed about eight hours.

           Q.    Did your injury cause you any lasting
                 effects?

           A.    Slightly in the walk . . . .

    We hold that under these facts and our case law reasonable

minds cannot differ as to the seriousness of Wright’s injuries.

See id. at 55, 409 S.E.2d at 319 (“We think that reasonable

minds could not differ as to the seriousness of Mrs. Hedgepeth's

physical injuries. A bullet ripped through her ear mere inches

from her skull. She required emergency room treatment for a

gunshot wound, powder burns and lacerations on her hand and

head. Her testimony indicates that her physical injuries may

have some permanency since she was still suffering from daily

ringing in her ear at the time of trial.”).          Compare with State

v. Bagley, 183 N.C. App. 514, 527, 644 S.E.2d 615, 623—24 (2007)

(holding reasonable minds could differ as to whether an injury

was serious where after suffering from a gunshot that passed

through his leg, the victim refused help from a passerby, went

home,   waited   thirty   minutes,   returned   to   the   scene   of   the

shooting, was interviewed by a police officer, asked a paramedic

to look at his leg, was then transported to a hospital where

medical staff “squirted water on it, gave him pain pills, and

released him after about two hours,” and the victim has no on-
                             -23-
going difficulties from the wound).    Accordingly, Valentine’s

argument is overruled.

    No error.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
