State v. McCombs ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-916
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 10 CRS 994, 50588
JOHN SMITH MCCOMBS, IV
Appeal by Defendant from judgments entered 10 April 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 27 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Irving Joyner for Defendant.
DILLON, Judge.
John Smith McCombs, IV (“Defendant”) appeals from judgments
entered upon his conviction for assault with a deadly weapon
inflicting serious injury (“AWDWISI”) and robbery with a
dangerous weapon, challenging the trial court’s denial of his
motion to dismiss and alleging a violated his Sixth Amendment
right to confrontation. Because we find substantial evidence
that the victim sustained a “serious injury” for purposes of
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AWDWISI, and because the out-of-court statements made to a
State’s witness were not admitted into evidence for their truth,
we find no error.
Defendant and a companion robbed pizza deliveryman Juan
Artiga at gunpoint on 23 January 2010. During the robbery, Mr.
Artiga attempted to drive away but accidentally shifted his car
into neutral. Hearing the engine rev, Defendant fired his gun
and shot Mr. Artiga in the leg. Defendant then fled the scene,
discarding the stolen pizzas as he ran. Mr. Artiga drove until
he located a police officer, who called an ambulance. Mr.
Artiga was taken to the hospital, treated, and released two
hours later.
Defendant first challenges the trial court’s denial of his
motion to dismiss the AWDWISI charge based on a lack of
substantial evidence that he inflicted a “serious injury” upon
Mr. Artiga. Defendant notes the prosecution presented no
testimony regarding the medical treatment provided to Mr. Artiga
in the emergency room or the amount of pain he experienced as a
result of his injury.
We find no merit to Defendant’s claim. Our courts have
long held that, “as long as the State presents evidence that the
victim sustained a physical injury as a result of an assault by
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the defendant, it is for the jury to determine the question of
whether the injury was serious.” State v. Alexander, 337 N.C.
182, 189, 446 S.E.2d 83, 87 (1994) (citing State v. Joyner, 295
N.C. 55, 65, 243 S.E.2d 367, 374 (1978)). Here, the State
adduced evidence that the bullet passed through Mr. Artiga’s
leg, producing “a lot of blood” and necessitating treatment in
the emergency room. See State v. Hedgepeth, 330 N.C. 38, 52-53,
409 S.E.2d 309, 318 (1991) (upholding peremptory instruction
that “a bullet wound which is through and through, that is
enters the flesh and exits the flesh[,] is a serious injury”).
Photographs of the entry and exit wounds were admitted into
evidence. Mr. Artiga further testified that he missed three
weeks of work at the pizza restaurant and two weeks at his full-
time job as a result of the gunshot, during which time he was
bedridden and unable to walk. This evidence was substantial to
support a jury finding of serious injury.
Defendant next challenges the trial court’s admission into
evidence of out-of-court statements made by siblings April and
Hubert McCleave to Salisbury Police Officer Travis Shulenburger
during the course of his investigation. Defendant claims that
allowing Officer Shulenburger to recount the McCleaves’
statements violated his Sixth Amendment right to confrontation
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under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177(2004) and Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224(2006). We review the trial court’s ruling on this
constitutional issue de novo. See State v. Tate, 187 N.C. App.
593, 599, 653 S.E.2d 892, 897 (2007).
The trial transcript reflects that the contested portion of
Officer Shulenburger’s testimony was not admitted for the truth
of the matters asserted by the McLeaves but to explain the
officer’s subsequent conduct -- specifically, his inclusion of
Defendant’s picture in the photographic lineup presented to Mr.
Artiga. The trial court instructed the jury “not to accept this
testimony for the truth of . . . what they said at all. It’s
not made under oath and you may not consider it as truthful
testimony in your deliberations.” Rather, the court allowed the
jury to receive the evidence solely “to explain what the officer
did later as a result of this information, not for the truth of
the matter asserted.”
Defendant concedes the evidence at issue did not constitute
hearsay, inasmuch as it was not offered for the truth of the
matters asserted by the declarants to Officer Shulenberger. See
N.C.R. Evid. 801(c); State v. Call, 349 N.C. 382, 409, 508
S.E.2d 496, 513 (1998). He suggests, however, that the
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constitutional rule established in Crawford is not limited to
hearsay evidence but applies to any “out-of-court testimonial
statement” entered into evidence, even when not offered for its
truth.
Defendant’s argument is meritless. As this Court has
recognized, the opinion in Crawford expressly provided that
“[t]he Confrontation Clause ‘does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.’” State v. Miller, 197 N.C. App. 78, 87, 676
S.E.2d 546, 552 (2009) (quoting Crawford, 541 U.S. at 59 n.9,
158 L. Ed. 2d at 197-98 n.9). Moreover, we have repeatedly held
a declarant’s out-of-court statement to police to be admissible
for the precise purpose indicated here by the trial court. See
Tate, 187 N.C. App. at 601-02, 653 S.E.2d at 898; State v.
Alexander, 177 N.C. App. 281, 284, 628 S.E.2d 434, 436 (2006),
disc. review denied and appeal dismissed, 361 N.C. 358, 644
S.E.2d 357 (2007). Accordingly, Defendant’s objection is
overruled.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER, JR., concur.
Report per Rule 30(e).