State v. Dixon, ___ N.C. App. ___, 811 S.E.2d 705 (Feb. 20, 2018)

In a case where the defendant was convicted of child abuse inflicting serious bodily injury under G.S. 14-318.4(a3), there was insufficient evidence that the victim experienced serious bodily injury. The victim, the defendant’s daughter, experienced a femur fracture that required surgery temporarily placing rods in her leg, and resulting in permanent scarring. The court rejected the State’s argument that the presence of a scar is sufficient by itself to show serious bodily injury. Here, the victim’s scars resulted from surgery. By the time of trial, the scars had healed and she was engaged in unrestricted physical activities. The State’s expert testified that the child should have no permanent disfiguration or any loss or impairment of function due to the scars. On these facts the scars by themselves are insufficient evidence of permanent disfigurement. The court went on to reject the State’s argument that the victim suffered extreme pain and loss of use of her leg for a period of time, noting that the statute requires more. It is not enough for the victim to suffer extreme pain; the statute requires a permanent or protracted condition that causes extreme pain. Here, the victim testified that her leg stopped hurting long before trial and the evidence showed she was cleared to engage in normal activities within nine months of her surgery. No testimony or other evidence showed that the victim was ever at risk of death due to her injury. Thus, the state presented insufficient evidence of serious bodily injury. The evidence was sufficient however to support a conviction of child abuse resulting in serious physical injury.