State v. Brunson , 180 N.C. App. 188 ( 2006 )

ELMORE, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion that there was no error in defendant’s convictions for First-Degree Rape, Possession of a Firearm by a Felon, First-Degree Kidnapping, and being a Violent Habitual Felon. However, I respectfully dissent from that part of the majority opinion holding that the State met its burden of showing substantial evidence of serious injury. Because I believe that no such substantial evidence was presented, I would vacate defendant’s Assault with a Deadly Weapon Inflicting Serious Injury conviction.

As noted in the majority opinion, “When ruling on a motion to dismiss, the trial court must consider whether the State has presented substantial evidence . . . State v. Lawson, 173 N.C. App. 270, 279, 619 S.E.2d 410, 415 (2005) (emphasis added). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Whether evidence presented constitutes substantial evidence is a question of law for the court.” State v. Frogge, 351 N.C. 576, 584-85, 528 S.E.2d 893, 899 (2000) (quotations and citations omitted).

I find it noteworthy that the State failed even to argue this point in its brief. Ostensibly, the State seeks to rely on bruises, swelling, and scratches, along with the victim’s testimony that she felt “pain all over,” to establish that the victim suffered a serious injury. I would hold that, as a matter of law, such paltry evidence cannot constitute that which “a reasonable mind might accept as adequate to support a conclusion” of serious injury. Id.

Because I would not find that substantial evidence of serious injury was presented to the trial court, I respectfully dissent from that part of the majority opinion that would uphold defendant’s conviction for Assault with a Deadly Weapon Inflicting Serious Injury.