An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1255

                      NORTH CAROLINA COURT OF APPEALS

                             Filed:    17 June 2014


STATE OF NORTH CAROLINA

      v.                                     Wayne County
                                             No. 11 CRS 55895

SHIYON KANIQUE WOOTEN



      Appeal by defendant from judgment entered 25 June 2013 by

Judge      Wayland   J.    Sermons,    Jr.    in    Wayne    County    Superior

Court.     Heard in the Court of Appeals 19 March 2014.


      Roy Cooper, Attorney General, by Narcisa Woods, Assistant
      Attorney General, for the State.

      James W. Carter for defendant-appellant.


      DAVIS, Judge.


      Defendant Shiyon Kanique Wooten (“Defendant”) appeals from

her   conviction     for   assault    with   a     deadly   weapon    inflicting

serious injury.       On appeal, she contends that the trial court

erred in (1) denying her motion to dismiss; and (2) failing to
                                         -2-


instruct the jury on self-defense.                   After careful review, we

conclude that Defendant received a fair trial free from error.

                                  Factual Background

      The State presented evidence at trial tending to establish

the following facts:          On 17 November 2011, Defendant and Loreal

Dungee (“Ms. Dungee”) got into an argument near the intersection

of Beech and Daisy Streets in Goldsboro, North Carolina.                        The

quarrel occurred after Ms. Dungee asked Defendant’s boyfriend,

Chris Bell, if she could use his phone.                   Ultimately, Defendant

and Ms. Dungee decided to fight.               Defendant obtained a kitchen

knife with a four- to five-inch blade from her home and then

returned outside.

      Several family members, friends, and other onlookers had

assembled   in   order       to    witness   the     fight,   including   Reginald

Fields (“Mr. Fields”), Ms. Dungee’s boyfriend.                  As the two women

approached each other, Defendant pulled out her knife from her

back pocket.       Ms. Dungee, upon seeing the knife, turned and

began running away from Defendant.                 Defendant chased Ms. Dungee

for   roughly    half    a    block    at    which    point   Ms.   Dungee    fell.

Defendant then repeatedly stabbed Ms. Dungee while she was lying

on the ground.      Ms. Dungee suffered wounds in both thighs and

below her shoulder blade.

      Emergency medical personnel were called, and Ms. Dungee was

transported to Wayne Memorial Hospital by ambulance.                         At the
                                         -3-


hospital,    Ms.    Dungee   was    treated      by   Dr.   Stephen    Moye     (“Dr.

Moye”).     Dr. Moye testified at trial that he closed Ms. Dungee’s

stab   wounds    with   seventeen       staples      and   numerous   sutures     and

prescribed her antibiotics as well as medication for pain and

anxiety.

       Officer     Edmund    Gillette         (“Officer     Gillette”)     of     the

Goldsboro Police Department was dispatched to the scene of the

crime shortly after the stabbing occurred.                      Officer Gillette

interviewed Defendant, who admitted that she and Ms. Dungee had

fought and that she had stabbed Ms. Dungee.                      While Defendant

told Officer Gillette that Ms. Dungee had been armed with a gun

at the time Defendant stabbed her, Defendant could not offer any

description of the gun.         Nor was any gun recovered at the scene.

       On 28 November 2011, Ms. Dungee saw Dr. Wendy Cipriani

(“Dr. Cipriani”) for removal of the 17 staples she had received.

Dr. Cipriani testified that Ms. Dungee had developed cellulitis

— indicating that her wounds had become infected.                     Dr. Cipriani

prescribed Keflex, an antibiotic, for the infection, Hydrocodone

for pain, and Xanax for anxiety.

       Defendant    testified      in   her    own    defense   at    trial.      She

stated that when she came back outside after arming herself with

a knife from her kitchen, she saw Mr. Fields hand Ms. Dungee a

gun.    Defendant claimed that, for this reason, she believed that

Ms. Dungee was about to harm her.               She explained that “before I
                                       -4-


gave her time to do what she was going to do to me, I ran her

down.”

      On 4 February 2013, Defendant was indicted on one count of

assault with a deadly weapon inflicting serious injury.                           A jury

trial was held in Wayne County Superior Court on 24 June 2013.

Defendant moved to dismiss the charge against her at the close

of the State’s evidence and at the close of all the evidence.

The trial court denied both of her motions.                         During the charge

conference,     Defendant   requested        a    jury       instruction     on    self-

defense.    The trial court denied this request.

      Defendant was convicted of assault with a deadly weapon

inflicting serious injury.            The trial court sentenced Defendant

to 20-33 months imprisonment, suspended the sentence, and placed

Defendant on supervised probation for 24 months.                            The court

ordered    Defendant   to     serve    an    active          term    of   five    months

imprisonment as special probation pursuant to N.C. Gen. Stat. §

15A-1351.    Defendant gave notice of appeal in open court.

                                  Analysis

I. Denial of Motion to Dismiss

      Defendant’s first argument is that the trial court erred in

denying her motion to dismiss on the theory that the State did

not   provide    sufficient    evidence          that    a    serious     injury     was

suffered by Ms. Dungee.        We disagree.
                                             -5-


    A trial court's denial of a defendant's motion to dismiss

is reviewed de novo.         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).             On appeal, this Court must determine

“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 . . . .”

State    v.    Fritsch,    351    N.C.       373,       378,   526   S.E.2d    451,     455

(citation 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).           Evidence must be viewed in the light most

favorable to the State with every reasonable inference drawn in

the State's 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).

    In    order    to     survive       a   defendant’s        motion    to   dismiss     a

charge    of    assault    with     a       deadly      weapon   inflicting      serious

injury, the State must produce substantial evidence of each of

the elements of that offense.                 The statute codifying the crime

of assault with a deadly weapon inflicting serious injury is

N.C. Gen. Stat. § 14-32(b), which provides that “[a]ny person

who assaults another person with a deadly weapon and inflicts

serious injury shall be punished as a Class E felon.”                          N.C. Gen.
                                         -6-


Stat. § 14-32(b) (2013).         “The elements of a charge under G.S. §

14-32(b)   are    (1)   an     assault      (2)   with   a    deadly    weapon    (3)

inflicting serious injury (4) not resulting in death."                       State v.

Ryder,   196     N.C.   App.    56,   66,      674   S.E.2d    805,     812    (2009)

(citation and quotation marks omitted).

    Defendant       challenges        the      sufficiency     of      the    State’s

evidence regarding the third element of the offense, contending

that the State failed to introduce sufficient evidence to show

that Defendant inflicted serious injury on Ms. Dungee.

           “Serious injury” as employed in G.S. 14-
           32(b)   means  physical   or  bodily  injury
           resulting from an assault with a deadly
           weapon.    The injury must be serious, but
           evidence of hospitalization is not required.
           The question of whether a serious injury has
           occurred is determined by the facts of each
           case and is a jury question.

State v. Rotenberry, 54 N.C. App. 504, 511, 284 S.E.2d 197, 201

(1981), cert. denied, 305 N.C. 306, 290 S.E.2d 705 (1982).                          A

non-exhaustive list of factors for a jury to consider regarding

whether a serious injury has actually occurred for purposes of

N.C. Gen. Stat. § 14-32(b) was set out by this Court in State v.

McLean, 211 N.C. App. 321, 712 S.E.2d 271 (2011):

                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.
           However, several relevant factors that may
           guide the determination of whether serious
                                  -7-


           injury has been inflicted, includ[e], but
           [are]   not   limited   to:    (1)    pain and
           suffering;    (2)   loss    of     blood;  (3)
           hospitalization; and (4) time lost from
           work.    Notably, this Court has indicated
           that competent evidence on any one of these
           factors    is   sufficient   in     itself  to
           constitute substantial evidence of serious
           injury.

Id. at 325, 712 S.E.2d at 275 (internal citations, quotation

marks, and brackets omitted).

    Our appellate courts have recognized that a jury question

will typically exist on this issue in cases where a victim is

injured as a result of an assault with a deadly weapon.               See

State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)

(holding that “[c]ases      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”).

    At     trial,   Defendant   admitted    to   stabbing    Ms.   Dungee

multiple times.     It is undisputed that as a result of the stab

wounds she sustained during this incident, Ms. Dungee was taken

by ambulance to the hospital.       Evidence was presented that she

was bleeding from her wounds, and Dr. Moye testified that she

received   17   staples   and   numerous   sutures.    Dr.    Moye   also

prescribed Ms. Dungee antibiotics, pain medication, and anxiety
                                   -8-


medication in connection with her injury.                Ms. Dungee missed

approximately one week of work after being released from the

hospital.       In addition, Dr. Cipriani testified that when Ms.

Dungee came to her office to have the staples removed, she had

developed an infection around her wounds requiring additional

treatment.

      We are satisfied that this evidence was sufficient to raise

a factual issue for resolution by the jury as to whether Ms.

Dungee suffered a serious injury for purposes of N.C. Gen. Stat.

§   14-32(b).      Consequently,   the   trial   court    did   not   err   in

denying Defendant’s motion to dismiss.

II. Refusal to Instruct Jury on Self-Defense

      Defendant’s    final   argument    challenges   the    trial    court’s

denial of her request for a jury instruction on self-defense.

This argument is also without merit.

      “Our Court reviews a trial court's decisions regarding jury

instructions de novo.”       State v. Cruz, 203 N.C. App. 230, 235,

691 S.E.2d 47, 50, aff’d per curiam, 364 N.C. 417, 700 S.E.2d

222 (2010).      We have held that “[a] defendant is entitled to a

jury instruction on self-defense when there is evidence from

which the jury could infer that [s]he acted in self-defense.”

State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206

(1998).      “In determining whether the self-defense instruction

should have been given, the facts are to be interpreted in the
                                     -9-


light most favorable to the defendant.”              State v. Moore, 111

N.C.   App.    649,   654,   432   S.E.2d   887,   889   (1993)   (citation,

quotation marks, and brackets omitted).

              There are two types of self-defense, perfect
              self-defense,   which    consists   of   the
              following four elements, and imperfect self-
              defense, which consists of only the first
              two elements:

                  (1) it appeared to defendant and
                  he believed it to be necessary to
                  kill the [victim] in order to save
                  himself from death or great bodily
                  harm; and

                  (2)    defendant's   belief   was
                  reasonable     in     that    the
                  circumstances as they appeared to
                  him at that time were sufficient
                  to create such a belief in the
                  mind of a person of ordinary
                  firmness; and

                  (3)   defendant    was    not     the
                  aggressor   in   bringing    on   the
                  affray,    i.e.,    he    did     not
                  aggressively and willingly enter
                  into   the   fight   without    legal
                  excuse or provocation; and

                  (4)   defendant    did   not   use
                  excessive force, i.e., did not use
                  more force than was necessary or
                  reasonably appeared to him to be
                  necessary under the circumstances
                  to protect himself from death or
                  great bodily harm.

                   Therefore, for defendant to be entitled
              to an instruction on self-defense, the
              following   questions   must   be   answered
              affirmatively: (1) Is there evidence that
              the defendant in fact formed a belief that
              it was necessary to kill his adversary in
                                    -10-


            order to protect himself from death or great
            bodily harm, and (2) if so, was that belief
            reasonable?

State v. Meadows, 158 N.C. App. 390, 401, 581 S.E.2d 472, 478

(internal    citations     and    quotation     marks     omitted),     appeal

dismissed and disc. review denied, 357 N.C. 467, 586 S.E.2d 774

(2003).

    In her brief, Defendant attempts to show her entitlement to

a self-defense instruction by pointing to her own testimony that

she saw Mr. Fields hand Ms. Dungee a gun.                     No corroborating

evidence was offered to show that Ms. Dungee ever possessed a

gun during this incident, and Defendant was unable to provide a

description of the alleged gun to police officers during her

questioning shortly after the incident.          Mr. Fields testified at

trial that he did not give Ms. Dungee a gun at any point during

or immediately preceding the fight.           Furthermore, no witnesses

testified to seeing Ms. Dungee with a gun.

    In    Meadows,   the   defendant   waited    on     his    ex-girlfriend’s

porch with a gun drawn.          Id. at 393, 581 S.E.2d at 474.            The

defendant testified that when he saw his ex-girlfriend and her

date (the victim) approach, he walked up behind the victim and

saw the victim “pulling from his crotch area” and that he “saw

something shine.”    Id. at 402, 581 S.E.2d at 479.              The defendant

then proceeded to shoot the victim in the head.                  The defendant

argued that based upon his testimony, the jury should have been
                                           -11-


instructed on self-defense.               Id., at 401-02, 581 S.E.2d at 479.

We rejected this argument, stating that

               where the record was totally void of any
               evidence supporting defendant's self-serving
               claim that he believed the other person was
               reaching for a weapon, the Court may hold
               defendant's   belief   was  not  objectively
               reasonable and that the trial court properly
               refused to instruct the jury on self-
               defense.    Accordingly, under the facts of
               this case, we hold the trial court did not
               err in failing to instruct the jury on self-
               defense.

Id. at 402, 581 S.E.2d at 479 (citation and quotation marks

omitted); see also State v. Bush, 307 N.C. 152, 159-60, 297

S.E.2d 563, 568-69 (1982) (holding that self-serving statements

by defendant that he was “nervous” and “afraid” of victim before

stabbing    was       not,   without      more,    sufficient        basis   for     jury

instruction on self-defense).

       Here,     we      believe     the     trial    court      properly          denied

Defendant’s      request       for   an   instruction    on    self-defense.           In

addition    to     the   absence     of    any    evidence    supporting      her    own

assertion that she saw Mr. Fields hand Ms. Dungee a gun, the

undisputed evidence showed that Defendant chased Ms. Dungee down

after Ms. Dungee had abandoned the confrontation upon seeing

Defendant brandish her knife.               Indeed, Ms. Dungee began fleeing

down the street and was chased by Defendant for approximately

half   a   block      before    Defendant    caught     up    with    her    and   began

stabbing her after Ms. Dungee had fallen to the ground.                                No
                                   -12-


evidence was offered that Ms. Dungee was holding — or reaching

for — a weapon at the time Defendant stabbed her.

    We conclude that Defendant failed to demonstrate that she

formed a reasonable belief that it was necessary for her to use

deadly force against Ms. Dungee in order to protect herself from

death or great bodily harm.        Accordingly, the trial court did

not err in denying Defendant’s request for an instruction on

self-defense.

                             Conclusion

    For   the   reasons   stated    above,   we   hold   that   Defendant

received a fair trial free from error.

    NO ERROR.

    Judges ELMORE and McCULLOUGH concur.

    Report per Rule 30(e).
