Criminal Practice – Assault – Living Victim – Jury Instructions

Even though someone else shot the victim, who later died, before defendant shot him, when the trial court instructed the jury on the charge of assault with a deadly weapon inflicting serious injury, the court was not required to instruct the jury that the state was required to prove that the assault was committed upon a living person. Since the trial court instructed the jury that “serious injury” is a physical injury that “causes great pain and suffering,” and since a person cannot suffer a serious injury that causes great pain and suffering not resulting in death if the person is already dead, the trial court fairly and accurately stated the law. Moreover, in light of the state’s evidence that none of the fatal gunshot wounds would have caused immediate death, defendant has not shown that the jury probably would have reached a different verdict had the trial court provided the instruction he describes on appeal.

We find no plain error in defendant’s conviction for assault with a deadly weapon inflicting serious injury.

State v. Savage (Lawyers Weekly No. 012-320-20, 6 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County Superior Court (Forrest Bridges, J.) Mark Sneed for the state; Lisa Miles for defendant. N.C. App. Unpub