State v. Gentle, ___ N.C. App. ___, 817 S.E.2d 833 (Jul. 3, 2018)

aff’d per curiam, ___ N.C. ___, 822 S.E.2d 616 (Feb. 1, 2019)

In this rape and sex offense case, the court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could find that the victim suffered serious personal injury in the form of mental injury; even if error occurred, it had no probable impact on the verdict. The defendant argued that the jury instruction was improper because the State presented no evidence of mental injury. The court noted that for several decades the appellate courts had held that it was per se error for the trial court to instruct the jury on a theory that was not supported by the evidence. However, in State v. Boyd, 366 N.C. 548 (2013) (per curiam), the Supreme Court shifted away from the per se rule. Now, a reviewing court must determine whether such an instruction constituted reversible error, without being required to assume that the jury relied on the inappropriate theory. Under North Carolina law, evidence of bodily or mental injuries can constitute serious personal injury for the purposes of forcible rape and forcible sex offense. Here, there was substantial evidence that the defendant inflicted bodily harm on the victim, who was seven months pregnant. The victim struggled to protect her stomach while the defendant forcibly dragged her down 33 concrete stairs and into nearby woods. She sustained extensive bruises and abrasions to most of the left side of her body, including her leg, abdomen, back, side, arm, and shoulder. Although some of the wounds were superficial, others were more significant abrasions. A nurse who testified at trial compared her injuries to “road rash” that a person might suffer after falling off a motorcycle traveling at 55 mph. The victim testified that her injuries were painful and she still bore extensive scars at trial. The court concluded that even assuming arguendo that there was no evidence to support the trial court’s instruction on mental injury, the defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict.