State v. Rushing, ___ N.C. App. ___, 836 S.E.2d 262 (Nov. 5, 2019)

The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.