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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. Butler

Court of Appeals of North Carolina

• Citations: None known

• Docket Number: 25-9

• Opinion

• Authorities (49)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.2K)

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Syllabus

Serious bodily injury; surveillance video authentication; flight

Combined Opinion

                        by Judge Tobias Hampson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-9

Filed 18 March 2026

Brunswick County, No. 23CR412129-090

STATE OF NORTH CAROLINA

v.

JOHN RUBEN BUTLER, JR.

Appeal by Defendant from Judgment entered 30 May 2024 by Judge Jason C.

Disbrow in Brunswick County Superior Court. Heard in the Court of Appeals 12

August 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Jayla L. Cole, for
the State.

Joseph M. Jennings for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

John Ruben Butler, Jr., (Defendant) appeals from his conviction for Assault

Inflicting Serious Bodily Injury. The Record on Appeal tends to show the following:

On 14 September 2023, Defendant was drinking at the home of Laura

Fasnacht with Laura, Timothy Williamson, and Defendant’s girlfriend, Nicole

Fairfax. Defendant and Nicole began arguing, leading to Defendant striking and

damaging a window of Nicole’s vehicle.
STATE V. BUTLER

Opinion of the Court

Nicole got into Defendant’s truck and tried to drive away, but Laura stood in

front of the truck and forced Nicole to stop. Tim walked over to the truck, unlocked

the driver’s side door, and pulled Nicole out of the driver’s seat and onto the ground.

He put Nicole into a choke hold and held her in place.

Defendant approached Tim and struck him repeatedly in the face and on the

head, causing him to let go of Nicole. Tim partially lost consciousness following the

first hit and faded in and out of consciousness throughout the rest of the encounter.

Defendant continued to strike Tim around the head and face while Tim laid on the

ground. Tim told Defendant, “please stop.” Defendant, however, continued to hit him.

Nicole and Laura attempted to separate Defendant from Tim but were unsuccessful.

Nicole got back into the driver’s seat of Defendant’s truck, Defendant got into

the passenger seat, and Nicole drove away. As they left, Nicole drove over Tim’s right

leg. Nicole and Defendant drove to a field about ten minutes away, where they slept

until law enforcement found and arrested them the next morning.

Tim was taken to the hospital the night of the assault and treated for his

injuries, including a closed fracture of his right orbit, a closed right maxillary

fracture, and a left parietal scalp hematoma. He was released the next day, prescribed

pain medication, and recommended for outpatient follow-up.

Defendant was charged with one count of Assault Inflicting Serious Bodily

Injury. His case came on for jury trial on 28 May 2024.

Prior to trial, Defendant moved to exclude photographs of Tim’s leg or reference

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STATE V. BUTLER

Opinion of the Court

to his leg injuries in medical records as irrelevant and unfairly prejudicial because

Defendant was not driving the truck when it drove over Tim’s leg. Nicole, who drove

the truck over Tim’s leg, had previously pleaded guilty to assault with a deadly

weapon. The trial court allowed the motion on the basis that this evidence was

irrelevant or, alternatively, unfairly prejudicial. At trial, certain evidence was

admitted which Defendant identifies on appeal as relating to the fact that Tim’s leg

had been run over, including witness testimony, medical records, and photographs.

The photographs referenced in the pretrial motion were not introduced, and the

medical records were redacted to remove direct references to the leg injuries.

Defendant did not object to this evidence at trial.

The State also introduced as evidence copies of video clips taken by the Ring

camera installed outside Laura’s home. Laura testified the camera was functioning

properly that night and that she had provided all the video to Detective Brandon

Fuller, who investigated the incident. Detective Fuller testified he used his phone

camera to record all the videos Laura provided him. Defendant moved pretrial to

exclude these videos for insufficient authentication, and he renewed this objection

when the videos were introduced as evidence before the jury. The trial court admitted

the videos over Defendant’s authentication objection.

Following the State’s presentation of evidence, Defendant moved to dismiss for

insufficiency of evidence. The trial court denied that Motion.

The trial court instructed the jury, over Defendant’s objection, that it could

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STATE V. BUTLER

Opinion of the Court

consider flight from the scene as evidence of guilt. It also denied Defendant’s request

that the jury be instructed on defense of a motor vehicle.

The jury found Defendant guilty of Assault Inflicting Serious Bodily Injury and

the trial court sentenced Defendant to 20 to 33 months imprisonment. Defendant filed

timely written notice of appeal.

Issues

The issues on appeal are whether the trial court erred by: (I) denying

Defendant’s Motion to Dismiss the charge of Assault Inflicting Serious Bodily Injury

on the basis there was insufficient evidence to support a finding Tim suffered “serious

bodily injury”; (II) admitting evidence relating to Nicole driving over Tim’s leg and

the resulting injuries; (III) admitting footage from the Ring camera over Defendant’s

foundation objection; (IV) instructing the jury on flight; and (V) refusing to instruct

the jury on Defense of a Motor Vehicle.

Analysis

I. Serious Bodily Injury

Defendant argues the trial court erred in denying his Motion to Dismiss.

Specifically, Defendant contends there was insufficient evidence to support a finding

that Tim suffered serious bodily injury.

When a defendant moves to dismiss a criminal charge for insufficiency of

evidence, the court must determine “whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense included therein, and

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STATE V. BUTLER

Opinion of the Court

(2) of defendant’s being the perpetrator of such offense.” State v. Fritsch, 351 N.C.

373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). We review

the trial court’s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App.

57, 62, 650 S.E.2d 29, 33 (2007). We consider the evidence “in the light most favorable

to the State, giving the State the benefit of every reasonable inference and resolving

any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994).

Defendant was convicted of Assault Inflicting Serious Bodily Injury under N.C.

Gen. Stat. § 14-32.4 (a) (2025), which states: “Unless the conduct is covered under

some other provision of law providing greater punishment, any person who assaults

another person and inflicts serious bodily injury is guilty of a Class F felony.” The

offense thus “requires proof of two elements: (1) the commission of an assault on

another, which (2) inflicts serious bodily injury.” State v. Hannah, 149 N.C. App. 713,

717, 563 S.E.2d 1, 4 (2002). The statute further defines the types of harm that

constitute “serious bodily injury:”

“Serious bodily injury” is defined as bodily injury that
creates a substantial risk of death, or that causes serious
permanent disfigurement, coma, a permanent or
protracted condition that causes extreme pain, or
permanent or protracted loss or impairment of the function
of any bodily member or organ, or that results in prolonged
hospitalization.

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STATE V. BUTLER

Opinion of the Court

N.C. Gen. Stat. § 14-32.4 (a). Accordingly, a showing of serious bodily injury “requires

proof of more severe injury than the ‘serious injury’ element of other assault offenses.”

State v. Williams, 150 N.C. App. 497, 503, 563 S.E.2d 616, 619-20 (2002). The General

Assembly created this category of assault “to cover those assaults that are especially

violent and result in the infliction of extremely serious injuries[.]” Id.

In this case, the trial court’s jury instructions specifically limited the jury’s

consideration of serious bodily injury:

Serious bodily injury is injury that creates or causes a
substantial risk of death, a permanent or protracted
condition that causes extreme pain, permanent or
protracted loss or impairment of the function of any bodily
member or organ, and/or prolonged hospitalization.

As the trial court limited its instruction and “a defendant may not be convicted of an

offense on a theory of guilt different from that presented to the jury,” we limit our

analysis to the definition actually submitted to the jury. Williams, 150 N.C. App. at

503, 563 S.E.2d at 620.

The State argues Tim’s injuries are sufficient to support a finding of serious

bodily injury, citing our unpublished decision in State v. Barefoot, 268 N.C. App. 671,

835 S.E.2d 62 (2019 WL 6482886).1 In Barefoot, we found sufficient evidence of

serious bodily injury when the victim suffered facial injuries that resulted in

permanent disfigurement and required a plate to be surgically implanted over his

1 Unpublished opinions are not controlling on this Court and citation by practitioners is
disfavored. N.C. R. App. P. 30(e)(3) (2025).

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STATE V. BUTLER

Opinion of the Court

fractures. Id. at *5. The victim experienced severe pain following the assault, fainting

twice the day after, and “experienced pain and numbness in his face and left eye up

to the time of trial.” Id. The treating physician estimated this numbness could take

three years to heal. Id. The victim also suffered from a protracted impairment of the

function of his jaw, which prevented him from eating for three months after surgery

and kept him out of work for five months. Id. Thus, the evidence in Barefoot supported

findings both that the victim was permanently disfigured and that he suffered severe

pain for a protracted length of time, satisfying the statutory definition of serious

bodily injury.

In addition to being unpublished and therefore uncontrolling, Barefoot is

inapposite. Unlike in Barefoot, the evidence in this case does not demonstrate that

there was either a prolonged hospitalization, a substantial risk of death, loss or

impairment of the function of any bodily member or organ, or that Tim suffered from

a “permanent or protracted condition” that caused extreme pain. The evidence

reflected Tim’s injuries consisted primarily of facial fractures, described specifically

as a closed fracture of his right orbit, a closed right maxillary fracture, and a left

parietal scalp hematoma. He was taken to the hospital the night of the assault,

treated, and released the next day. He was prescribed painkillers but never filled the

prescription, and he testified the pain was gone after “a day or two” with bruises

lasting up to a week. He testified there was no lasting effect from his injuries. As the

only precedent invoked by the State, it is clear the injuries at issue in Barefoot were

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STATE V. BUTLER

Opinion of the Court

significantly more severe than in this case, in which Tim experienced no long-term

effect following a “day or two” of pain and a week of bruising.

Indeed, other examples of “serious bodily injury” from our caselaw universally

involve a more prolonged recovery period and profound effect on the victim. See, e.g.,

State v. Fields, 265 N.C. App. 69, 72, 827 S.E.2d 120, 122 (2019) (rip in genitals

causing pain for three months, requiring 15 stitches, pain medication, and that victim

stay out of work for two weeks); State v. Brown, 177 N.C. App. 177, 188, 628 S.E.2d

787, 794 (2006) (victim testified facial injuries were “very painful,” that he suffered

pain for about a month; doctor testified injuries were of a type that caused “severe”

and “extreme” pain). We have also held injuries requiring a significantly longer

recovery than those in this case as failing to constitute severe bodily injury. See State

v. Williams¸ 201 N.C. App. 161, 184, 689 S.E.2d 412, 425 (2009) (evidence of “vicious

beating” that left victim’s ribs sore for five months insufficient to show serious bodily

injury as there was no evidence of substantial risk of death or extreme pain).

While previous cases which turn on particular facts can be instructive, we note

the specific injuries in precedent cases should not be used as “measuring posts” for

determining whether the evidence before us is sufficient to support a finding of

serious bodily injury. State v. Rushing, 268 N.C. App. 285, 291, 838 S.E.2d 262, 266

(2019). Our inquiry focuses not on whether the victim’s injuries were more or less

severe than those suffered in another case, but on whether there is substantial

evidence the injuries satisfy the statutory definition of serious bodily injury, as

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STATE V. BUTLER

Opinion of the Court

relayed to the jury. Id. The question is whether a reasonable juror could find the

evidence in the Record, taken in the light most favorable to the State, sufficient to

conclude Tim’s injuries caused a “substantial risk of death, a permanent or protracted

condition that causes extreme pain, permanent or protracted loss or impairment of

the function of any bodily member or organ, and/or prolonged hospitalization.”

In this case, the evidence of facial fractures and bruising do not indicate there

was a substantial risk of death, a permanent or protracted condition causing extreme

pain, or a permanent or protracted loss or impairment of function of any bodily

member or organ. N.C. Gen. Stat. § 14-32.4 (a). Nor is there evidence of a prolonged

hospitalization. Id. The injuries involved in this case do not constitute “serious bodily

injury” as defined by statute and relayed to the jury.

The dissent suggests holding the evidence insufficient to support the jury’s

finding invades the province of the jury by reweighing the evidence. This

mischaracterizes our analysis. Examining the evidence of Tim’s injuries in the light

most favorable to the State—facial fractures resulting in pain which lasted “a day or

two” and bruising for a week—no reasonable juror could conclude Tim was at risk of

death, that he suffered from a protracted period of extreme pain, a protracted loss of

function, or that his hospitalization was prolonged. The dissent focuses on the

brutality of the assault itself and describes Tim’s injury in detail, but it is unable to

describe any way in which the evidence shows the resulting injuries threatened Tim’s

life or caused permanent or protracted pain or loss of function. It cites to no prior

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STATE V. BUTLER

Opinion of the Court

decision of our courts to support its conclusion that these injuries can constitute

serious bodily injury. The dissent instead posits that because “Defendant relentlessly

and repeatedly struck Tim’s head and face, caused facial fractures, rendered him

unconscious, and hospitalized him overnight” the jury was entitled to conclude “a

substantial risk of death or a protracted condition causing extreme pain” thereby

resulted. But the dissent cannot identify any evidence in the Record that these

injuries in fact created a risk of death or any protracted condition, only evidence of

the injuries themselves. Regardless of the extent of the victim’s injuries, the question

is whether the evidence can satisfy the statutorily defined element of the crime

charged: that the result of the injuries included a risk of death or a protracted

condition causing extreme pain or the loss or impairment of the function of a bodily

member or organ. N.C. Gen. Stat. § 14-32.4 (a); see, e.g., Rushing, 268 N.C. App. at

290, 836 S.E.2d at 265 (focusing analysis on ongoing impairment of victim’s vision to

determine substantial evidence of serious bodily injury was presented); State v.

Bohannon, 247 N.C. App. 756, 762-63, 786 S.E.2d 781, 787 (2016) (evidence sufficient

to support serious bodily injury when injuries to infant included brain hemorrhage

that had potential to kill victim and would require continuous monitoring for future

side effects). All evidence of the result of Tim’s injuries, taken in the light most

favorable to the State, indicate that he recovered quickly, was not in “extreme pain,”

and was not impaired for a protracted period. There is no evidence of a substantial

risk of death. A jury could only conclude Tim’s injuries in fact resulted in these harms

• 10 - STATE V. BUTLER

Opinion of the Court

by relying on “suspicion or conjecture.” State v. Johnson, 199 N.C. 429, 154 S.E. 730

(1930). Thus, there was not substantial evidence that Tim’s injuries constitute

“serious bodily injury” as defined by the General Assembly.

We agree the province of the jury should not be invaded and “when reasonable

minds . . . might reach different conclusions, the evidence must be submitted to the

jury.” State v. Clark, 183 N.C. 733, 735 (1922). However, when no reasonable mind

can conclude from the evidence a serious bodily injury occurred, we must vacate an

erroneous conviction, as we have previously done. See, e.g., State v. Williams, 255

N.C. App. 168, 804 S.E.2d 570 (2017); State v. Dixon, 258 N.C. App. 78, 811 S.E.2d

705 (2018); Williams, 201 N.C. App. 161, 689 S.E.2d 412. While it is the province of

the jury to weigh the evidence and determine the facts of the case, that province is

not unlimited: the State must meet the minimum burden of producing substantial

evidence of each element of a charge in order to submit that charge to the jury. State

v. Ashe, 193 N.C. App. 569, 574, 668 S.E.2d 65, 69 (2008).

Thus, on the facts of this case, there was insufficient evidence to support the

“serious bodily injury” element of the offense. Therefore, the trial court erred in

denying Defendant’s Motion to Dismiss the charge of Assault Inflicting Serious Bodily

Injury. Consequently, we vacate that conviction.

The jury was also instructed on the lesser-included offense of misdemeanor

Assault Inflicting Serious Injury. When a defendant is convicted of a crime involving

the element of “serious bodily injury,” but that element is not supported by sufficient

• 11 - STATE V. BUTLER

Opinion of the Court

evidence, we remand for entry of judgment on a lesser-included offense if sufficient

evidence supports each element of the lesser offense. See State v. Williams, 255 N.C.

App. 168, 183, 804 S.E.2d 570, 579-80 (2017) (remanding for entry of judgment on

lesser-included offense of Assault on a Law Enforcement Officer Inflicting Physical

Injury as jury “clearly found Officer Smith sustained a ‘physical injury’ when it

convicted Defendant of assault on a law enforcement officer inflicting serious bodily

injury”); State v. Dixon, 258 N.C. App. 78, 87, 811 S.E.2d 705, 711 (2018) (remanding

for entry of judgment on lesser-included offense of felony child abuse inflicting serious

physical injury when evidence was insufficient to show serious bodily injury). See also

State v. Jolly, 297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979) (holding proper remedy for

improperly denied motion to dismiss where only unproved element is element

elevating the offense to the greater crime is vacatur of judgment and remand for entry

of judgment on the lesser-included offense).

A defendant is guilty of misdemeanor Assault Inflicting Serious Injury if he 1)

commits an assault which 2) inflicts serious injury upon another person. N.C. Gen.

Stat. § 14-33 (c)(1). “Serious injury” has been defined as a “physical or bodily injury.”

State v. Everhardt, 326 N.C. 777, 780, 392 S.E.2d 391, 392 (1990) (holding mental

injury can also constitute serious injury). We have “declined to define” the term

beyond this as “further definition seems neither wise nor desirable” and we have held

the question of whether serious injury has been inflicted as dependent on the

particular facts of each case and a question for the jury. State v. Walker, 204 N.C.

• 12 - STATE V. BUTLER

Opinion of the Court

App. 431, 446, 694 S.E.2d 484, 495 (2010). The evidence of Tim’s facial fractures is

sufficient to support a finding of serious injury. See, e.g., State v. Brunson, 180 N.C.

App. 188, 194, 636 S.E.2d 202, 206 (2006) (evidence supported finding of serious

injury when victim of beating felt “pain all over” and suffered bruising, swelling,

scratches, and black eyes); State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87-

88 (cuts to arm from glass shattered by bullet constituted serious injury).

Because there is sufficient evidence to support a conviction for the lesser-

included offense of misdemeanor Assault Inflicting Serious Injury, we remand to the

trial court for entry of judgment and sentencing on the lesser charge.

II. Evidence of Leg Injuries

Defendant next argues the trial court erred by admitting evidence relating to

Nicole driving over Tim’s legs and the resulting injuries. Defendant contends such

evidence is irrelevant because Defendant was charged with assault for hitting Tim in

the face and head, not with the truck which Nicole operated. Recognizing this, the

trial court allowed Defendant’s pretrial motion to exclude photographs of Tim’s leg

injuries and references in the medical records to leg injuries, finding such evidence

was irrelevant and unfairly prejudicial. It ordered the same with regard to video

showing the injuries.

At trial, the State introduced evidence which was not expressly excluded by

the trial court’s pretrial order, including witness testimony mentioning the truck

driving over Tim, a 911 call, Ring camera footage, photographs of the truck, tire

• 13 - STATE V. BUTLER

Opinion of the Court

tracks, and clothing that had been cut off to allow treatment to Tim’s leg, law

enforcement testimony describing locating the truck and processing it for evidence,

Tim’s testimony that he had some trouble walking following the incident, and

redacted copies of Tim’s medical records.

Defendant concedes he did not object when this evidence was admitted. Absent

a party’s objection, we review the admission of evidence for plain error.2 State v.

Clark, 380 N.C. 204, 209, 868 S.E.2d 56, 61 (2022). “To establish plain error defendant

must show that a fundamental error occurred at his trial and that the error had a

probable impact on the jury’s finding that defendant was guilty.” Id. (citing State v.

Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568 (2012)). “Probable impact” means that,

absent the error, “the jury probably would have returned a different result.” Towe,

366 N.C. at 57, 732 S.E.2d at 565. In order to carry this burden, Defendant must show

that outcome “is significantly more likely than not.” State v. Reber, 386 N.C. 153, 159,

900 S.E.2d 781, 787 (2024). In arguing the trial court committed plain error by

admitting this evidence, Defendant claims “the evidence focused heavily on the truck

and contained dozens of references to the leg injuries sustained when [Tim] was run

over,” and that the trial court’s pretrial exclusion of certain evidence related to Tim’s

2 The evidence at issue does not appear to fall within the scope of Defendant’s pretrial objection

and the trial court’s resulting ruling. Regardless of whether it falls within that scope, we review its
admission for plain error because Defendant did not renew his objection. “[A] trial court’s evidentiary
ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a
defendant renews the objection during trial.” State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821
(2007) (citations omitted).

• 14 - STATE V. BUTLER

Opinion of the Court

injuries supports his argument this evidence was irrelevant and prejudicial.

The bulk of the evidence identified by Defendant describes or relates to Nicole’s

act of running over Tim’s legs with the truck without reference to the nature of the

resulting injuries or indeed whether any injury resulted at all. This primarily consists

of witness testimony describing the sequence of events. Defendant also identifies

evidence concerning the truck, including photographs of the truck and tire tracks and

“two police officers whose only testimony was about finding the truck and processing

it for evidence.” It is unclear that this evidence is irrelevant to Defendant’s charge,

as “evidence is relevant if it tends to shed light upon the circumstances surrounding

the [assault].” State v. Hannah, 149 N.C. App. 713, 722, 563 S.E.2d 1, 7 (2002). It is

also unclear that this evidence is similar to that excluded by the pretrial order: the

trial court excluded medical records and photographs of Tim’s injuries as irrelevant

but did not address the relevance of any evidence which only referenced the event of

Nicole running over Tim’s legs.

Even assuming the evidence is irrelevant, its admission cannot meet the

“exacting prejudice standard required for plain error review.” Reber, 386 N.C. at 160,

900 S.E.2d at 787. Defendant’s only argument regarding this standard is that

evidence of Tim being run over “consumed substantial trial time and unfairly

magnified [Defendant’s] criminality.”

This does not rise to the level of prejudice necessary to demonstrate that

“absent the error, the jury probably would have reached a different result.” Id. Here,

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Opinion of the Court

the remaining evidence included testimony of multiple witnesses who observed

Defendant striking Tim around the head and face. Moreover, the trial court

specifically instructed the jury as to the conduct upon which it could base a conviction:

The defendant has been charged with assault inflicting
serious bodily injury.

For you to find the defendant guilty of this offense, the
State must prove two things beyond a reasonable doubt:

First, that the defendant assaulted the victim by
intentionally and without justification or excuse hit the
alleged victim about the head and face with his fists.

And second, that the defendant inflicted serious bodily
injury. Serious bodily injury is injury that creates or causes
a substantial risk of death, a permanent or protracted
condition that causes extreme pain, permanent or
protracted loss or impairment of the function of any bodily
member or organ, and/or prolonged hospitalization.

Thus, the jury was instructed that only the conduct of striking Tim on the head

and face could support the charge. Additionally, the evidence clearly showed Nicole,

not Defendant, was driving the truck when it ran over Tim’s leg, and the jury was

instructed to consider only injuries “that the Defendant inflicted.” “[T]his Court

presumes that jurors follow the trial court’s instructions.” State v. Steen, 352 N.C.

227, 249, 536 S.E.2d 1, 14 (2000).

Defendant cites two cases to support his contention that admitting evidence of

Nicole driving over Tim’s leg was error: State v. Moctezuma, 141 N.C. App. 90, 539

S.E.2d 52 (2000) and State v. McKnight, 239 N.C. App. 108, 767 S.E.2d 689 (2015).

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Opinion of the Court

Neither of these cases involve assaults but are instead drug possession cases in which

the trial courts admitted evidence of drugs, unrelated to the charge, which were found

in dwellings associated with the defendants. In each, we held evidence of drugs

unconnected with the defendant was not relevant to show knowledge under Rule

404(b). 141 N.C. App. at 94, 539 S.E.2d at 56; 239 N.C. App. at 121, 767 S.E.2d at

1. In neither case did we hold the error amounted to plain error: in Moctezuma we

held the defendant was prejudiced under the harmless error standard, and in

McKnight we held the error was insufficiently prejudicial to demonstrate plain error.

141 N.C. App. at 95, 539 S.E.2d at 56; 239 N.C. App. at 121-22, 767 S.E.2d at 698-99.

Putting aside the differences between drug and assault offenses, this case is

distinct from McKnight and Moctezuma in that the jury in this case was aware

Defendant did not commit the separate offense. Multiple witnesses testified Nicole

was the person driving the truck, and there were no allegations that Defendant was

the driver. Nicole testified that she pleaded guilty to assault with a deadly weapon.

In the drug cases, by contrast, there was no indication of who had actually possessed

the unrelated quantities of drugs, allowing the jury to impute the guilt represented

by those drugs to the defendants. See Moctezuma, 141 N.C. App. at 95, 539 S.E.2d at

56 (“Despite the trial court’s limiting instruction, the jury could have easily concluded

. . . that defendant was a high level drug trafficker.”). There is no such ambiguity

here. Assuming the trial court erred by admitting evidence related to Nicole driving

over Tim’s legs, Defendant has not shown the jury probably would not have convicted

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Opinion of the Court

him absent the evidence, and has failed to demonstrate plain error.

Some of the evidence identified by Defendant relates not only to Nicole’s act of

driving over Tim’s legs but additionally implies Tim was injured as a result. While

the medical records introduced were redacted to remove references to any leg injury,

unredacted portions indicate Tim’s legs were examined during his treatment and

include the results from x-rays taken of his legs. These results state “The bones are

normal. No acute fractures . . . .” Tim testified, when asked about his injuries:

I’ve just got to pay attention as to how fast I move or walk.
I’ve got problems with that knee anyway, so if I walk too
fast, I’m down.

As noted above, although evidence of the injuries themselves is more directly related

to that which was excluded pretrial, without a renewal of the objection during trial

we continue to review the admission for plain error. Oglesby, 361 N.C. at 554, 648

S.E.2d at 821 (2007).

While evidence of Nicole’s act does not rise to the level of plain error, Defendant

argues any evidence of the resulting injuries would be additionally prejudicial

because the jury could have used those injuries to erroneously support a finding Tim

had suffered serious bodily injury as a result of Defendant’s assault. However, we

have already determined there was insufficient evidence of serious bodily injury.

Because the prejudice Defendant identifies “cannot have any practical effect on the

existing controversy,” this argument is moot. State v. Joiner, 273 N.C. App. 611, 614,

849 S.E.2d 106, 110 (2020).

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Opinion of the Court

Accordingly, Defendant has not shown the trial court committed plain error by

admitting evidence of either Nicole running over Tim’s legs or the injuries that

resulted therefrom.

III. Ring camera video

Defendant further argues the trial court erred by admitting ten video clips

taken from Laura’s motion-activated Ring camera which recorded portions of the

altercation. Defendant moved pretrial to exclude the videos, arguing there were

genuine questions as to their authenticity, and renewed that objection when the State

moved to admit the videos. The trial court overruled the objection. Defendant argues

the trial court erred in concluding the State had properly authenticated the video

clips and that he was prejudiced by their admission because they only showed certain

portions of the night’s events: while the camera recorded video of Defendant striking

Tim on the ground, it failed to show the events immediately leading up to that

moment, including Tim pulling Nicole out of the truck and putting her in a choke

hold.

“Where a videotape depicts conduct of a defendant in a criminal case, its

potential impact requires the trial judge to inquire carefully into its authenticity,

relevancy, and competency[.]” State v. Billings, 104 N.C. App. 362, 371, 409 S.E.2d

707, 712 (1991). Under Rule 901(a) of our Rules of Evidence, evidence must be

authenticated by showing “that the matter in question is what its proponent claims.”

N.C. Gen. Stat. § 8C-1, Rule 901(a). As Defendant recognizes, trial court decisions to

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Opinion of the Court

admit evidence are generally reviewed for abuse of discretion. Brown v. City of

Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753 (2006). However, trial

court determinations as to whether evidence has been properly authenticated are

reviewed de novo on appeal as a question of law. State v. Crawley, 217 N.C. App. 509,

515, 719 S.E.2d 632, 637 (2011). When the trial court has admitted video evidence,

we review that admission to determine whether “there was sufficient evidence for the

trial judge to find that the State had laid a proper foundation to introduce the

videotape into evidence for either substantive or illustrative purposes.” State v.

Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 609 (1988), rev’d on other grounds,

326 N.C. 37, 387 S.E.2d 450 (1990).

The admissibility of video evidence is governed by the same rules that apply to

still photographs, and videos similarly may be admitted for either illustrative or

substantive purposes. State v. Mason, 144 N.C. App. 20, 24, 550 S.E.2d 10, 14 (2001).

“Recordings such as a tape from an automatic surveillance camera can be

authenticated as the accurate product of an automated process under Rule 901(b)(9).”

State v. Snead, 368 N.C. 811, 814, 783 S.E.2d 733, 736 (2016) (citing 2 Kenneth S.

Broun et al., McCormick on Evidence § 216, at 39–40 (7th ed.2013)). When, as in this

case, the evidence is introduced for substantive purposes, “[e]vidence that the

recording process is reliable and that the video introduced at trial is the same video

that was produced by the recording process is sufficient to authenticate the video and

lay a proper foundation for its admission as substantive evidence.” Id. For example,

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Opinion of the Court

in Snead this requirement was met when a regional loss prevention manager

testified:

that he was familiar with how Belk’s video surveillance
system worked, that the recording equipment was
“industry standard,” that the equipment was “in working
order” on 1 February 2013, and that the videos produced
by the surveillance system contain safeguards to prevent
tampering. Moreover, Steckler established that the video
introduced at trial was the same video produced by the
recording process[.]

Id.

Defendant argues the State failed to produce evidence sufficient to support

either requirement under this authentication method: (1) that the video introduced

at trial is the same as that produced by the recording process; and (2) that the

recording process is reliable.

To support his argument there was insufficient evidence the video introduced

at trial is the same as that produced by the recording process, Defendant alleges “no

witness was able to say the videos introduced at trial were identical to those produced

by the Ring camera.” However, Laura testified there was no way to modify the video

clips, that she had not changed or hidden any of them, and that she handed Detective

Fuller her phone and allowed him to scroll through all the videos. Detective Fuller

testified he used his phone camera to record all the video clips Laura provided him.

Laura identified State’s Exhibit 66 as “all the videos that the officer got from my

camera.” Taken together, this testimony is sufficient evidence to support a finding

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Opinion of the Court

that the video introduced at trial is the same as that produced by the recording

process.

There must also be sufficient evidence the recording process was reliable. In

Snead, testimony that the recording equipment was “industry standard,” in “working

order,” and contained safeguards to prevent tampering was sufficient to meet this

burden. 368 N.C. at 814, 783 S.E.2d at 736. Similarly, we have held the State had

provided sufficient evidence of reliability through a police officer’s testimony that “the

surveillance video system was functioning properly at the time.” State v. Fleming,

247 N.C. App. 812, 818, 786 S.E.2d 760, 766 (2016).

In this case, Laura similarly testified the Ring camera was working on the

night in question and that it records video when it detects motion. She testified that

the video clips were stored on her phone, where they are retained for approximately

ten days. When first asked about the camera, she stated that it would record for 20

seconds upon detecting motion, but on cross-examination noted that sometimes it

recorded in 10-second increments.

Witness testimony that a surveillance system was functioning properly,

without more, may not be sufficient to support a finding of reliability when there is

some other indication the system is not reliable. In State v. Mason, for example, the

surveillance system in question failed at some point in the six months following the

robbery at issue in the case, requiring replacement of the incorporated VCR. 144 N.C.

App. 20, 23, 550 S.E.2d 10, 13 (2001). Two store employees expressed the opinion that

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Opinion of the Court

the store surveillance system was working the night of the robbery. Although one had

some knowledge relating to the operation of the system, when asked about the VCR

he answered the system used “a preprogrammed time-lapse VCR recorder and I am

not technically minded enough to tell you how the doggone thing works.” Id. The other

testified “she could not even operate her home VCR.” Id. at 26, 550 S.E.2d at 15.

Because “neither one knew anything about the maintenance or operation of the

camera system,” we held there was insufficient evidence to establish the system was

properly functioning at that time:

None of the State’s witnesses gave testimony to indicate
that there was any routine maintenance or testing of the
Eckerd’s security system. Nor was there testimony from
any witness that the tapes made on days immediately
preceding and following the robbery had been examined.
The evidence presented at trial was insufficient to
establish that the store security system was properly
functioning on 8 January 1998.

Id.

In this case, there was no evidence the Ring camera system malfunctioned, and

Laura testified as to how the system worked without expressing confusion like that

shown by the witnesses in Mason. That testimony along with her testimony that the

system was working at the time, like that in Snead and Fleming, was sufficient to

support a finding the recording process was reliable.

Defendant argues, however, that the gaps between recorded segments indicate

the recording process was unreliable. Each of the ten video clips introduced as

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Opinion of the Court

evidence was ten seconds in length, with recording gaps ranging from less than ten

seconds to over a minute between clips. The first clip begins at timestamp 20:01:54,

and the last clip ends at 20:08:18, meaning the camera recorded one minute and forty

seconds of a six minute and twenty-four second time period. When asked, Laura was

unable to explain why there were gaps in the recording during moments when

movement was occurring.

However, gaps in coverage of video surveillance recordings do not necessarily

render the recording process unreliable for the purpose of authentication. A gap in

footage does not indicate the video is not “what it purports to be.” Snead, 386 N.C. at

815, 783 S.E.2d at 737. The video footage which was actually recorded still may

constitute relevant, authenticated, and admissible evidence, with any gaps more

properly affecting the weight assigned to the video by the finder of fact. In Bowman

v. Scion, for example, we held the Industrial Commission erred by excluding

surveillance video which skips and freezes for approximately 3 seconds at the moment

of the plaintiff’s injury, such that that no part of his fall was recorded. 224 N.C. App.

1, 13, 737 S.E.2d 384, 391 (2012). Although a critical span of footage had not been

recorded, we held this more properly impacted the weight of the video evidence, not

its admissibility. Id. at 13, 737 S.E.2d at 392. Accordingly, we instructed the

Industrial Commission to admit the video into evidence and enter an order taking

into account all evidence in the record, including the video. Id. at 14, 737 S.E.2d at

392.

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Opinion of the Court

Although our courts have not had further opportunity to address

authentication of surveillance video with alleged recording gaps, this approach

appears to comport with that of other jurisdictions. In Henderson v. State, for

example, surveillance camera footage of a fire contained what the defendant argued

were “critical gaps,” in which the motion-activated cameras failed to record vehicles

arriving onto the property or cut off recording during ongoing motion. No. CR-21-

0044, 2024 WL 1946585 (Ala. Crim. App. 3 May 2024). However, those gaps went to

the weight to be afforded the videos, not their admissibility.3 Id. at *25 (citing Capote

v. State, 323 So. 3d 104, 134 (Ala. Crim. App. 2020) (noting that a video is not

rendered inadmissible simply because it “does not show a continuity of action”)).

The gaps in recording in this case do not indicate the existing footage was not

“what its proponent claims.” N.C. R. Evid. 901(a). Thus, there was sufficient evidence

in the record for the trial court to conclude the recording process was reliable and

that the videos produced at trial were those produced by the recording process.

Therefore, the video clips were properly authenticated. Consequently, the trial court

did not err by admitting the Ring camera footage.

IV. Flight Instruction

3 In some situations, it may be appropriate for a trial court, particularly during a jury trial, to

recognize significant recording gaps so impact the probative value of the evidence or the weight to be
given a video recording that it determines it necessary to exclude that recording as irrelevant or
because of the danger of unfair prejudice or misleading the jury. Here, though, the only issue before
this Court is the authentication of the video clips.

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Opinion of the Court

Defendant also argues the trial court erred by instructing the jury on flight.

Defendant objected to the flight instruction during the charge conference, and the

trial court overruled the objection. We review de novo the trial court’s issuance of an

instruction over Defendant’s objection. State v. Parker, 290 N.C. App. 650, 657, 893

S.E.2d 544, 549 (2023). A flight instruction is properly given if there is “some evidence

in the record reasonably supporting the theory that the defendant fled after the

commission of the crime charged.” State v. Fisher, 336 N.C. 684, 706, 445 S.E.2d 866,

878 (1994).

The evidence showed Defendant, after assaulting Tim, got into the passenger’s

seat of his truck without attempting to render aid. Nicole immediately drove the truck

away while Tim was on the ground, driving over his leg. Nicole drove them to a field

near her home, where they slept in the truck until found by law enforcement the next

day.

Evidence of a defendant’s flight from the scene of a crime does not create a

presumption of guilt but is generally relevant to consider with other factors to

determine whether the circumstances “amount to an admission of guilt or reflect a

consciousness of guilt.” State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 698

(1973). “Mere evidence that defendant left the scene of the crime is not enough to

support an instruction on flight. There must also be some evidence that defendant

took steps to avoid apprehension.” State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d

386, 490 (1991).

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Opinion of the Court

Defendant argues primarily the instruction on flight was erroneous because he

was not the driver of the truck and there was no evidence he directed Nicole to leave

the scene or where to go. He also notes he did not engage in other activities commonly

recognized as additional steps to avoid apprehension, such as changing his

appearance to conceal his identity or leaving the county or state. See, e.g., Fisher, 336

N.C. at 706, 445 S.E.2d at 878; State v. Allen, 346 N.C. 731, 741, 488 S.E.2d 188, 193

(1997).

The fact that Defendant was not the driver of the vehicle does not mean the

evidence cannot support a flight instruction. See, e.g., State v. Reeves, 343 N.C. 111,

113, 468 S.E.2d 53, 55 (1996) (evidence supported flight instruction when defendant

ran from the scene of the crime, got in a car waiting nearby, and was driven away);

State v. Bradford, 252 N.C. App. 371, 377, 798 S.E.2d 546, 550 (2017) (evidence

sufficient to support flight when defendant was passenger in car that sped away from

gas station after shooting).

There is also evidence Defendant took additional steps to avoid apprehension.

Defendant left the scene without attempting to render aid to Tim. See State v. Lloyd,

354 N.C. 76, 120, 552 S.E.2d 596, 626 (2001) (evidence supported flight instruction

when defendant “sped away from the scene of the crime” without rendering aid before

calling law enforcement to arrange a surrender). Although Defendant was not driving

the truck, he immediately got in after concluding the assault and allowed Nicole to

drive away, which she did quickly and recklessly enough that she ran over Tim’s leg.

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Opinion of the Court

There is no evidence Defendant attempted to stop Nicole or have her return to Laura’s

house. Defendant at no point attempted to contact law enforcement or emergency

services to obtain medical assistance for Tim. He then chose to spend the night in the

truck in a field rather than returning home. See State v. Shelly, 181 N.C. App. 196,

209, 638 S.E.2d 516, 526 (2007) (spending the night away from home could be viewed

as a step to avoid apprehension as it was “an action that was not part of Defendant’s

normal pattern of behavior”).

Thus, “[t]he evidence of defendant’s behavior in the aftermath of the [assault]

establishes that he did more than merely leave the scene of the crime and is sufficient

to support a finding of consciousness of guilt[.]” Id. Therefore, there is evidence in the

record reasonably supporting the theory that Defendant fled after the commission of

the crime charged. Consequently, the trial court did not err by instructing the jury

on flight.

V. Defense of a Motor Vehicle

Defendant last argues the trial court erred by declining to instruct the jury on

defense of a motor vehicle. We review challenges to trial court decisions regarding

jury instructions de novo. State v. Osorio, 196 N.C App. 458, 466, 675 S.E.2d 144, 149

(2009). Trial courts have a duty “to instruct the jury on all substantial features of a

case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549

(1988). Defense of a motor vehicle is codified in our self-defense statutes. N.C. Gen.

Stat. § 14-51.2 (b). “When supported by competent evidence, self-defense

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Opinion of the Court

unquestionably becomes a substantial and essential feature of a criminal case.” State

v. Parks, 264 N.C. App. 112, 115, 824 S.E.2d 881, 884 (2019) (citation omitted). To

determine if there is sufficient evidence to support an instruction for self-defense, “we

take the defendant’s evidence as true and consider it in the light most favorable to

the defendant.” Id.

The statute provides an affirmative defense when the lawful occupant of a

motor vehicle uses defensive force in certain circumstances:

The lawful occupant of a home, motor vehicle, or workplace
is presumed to have held a reasonable fear of imminent
death or serious bodily harm to himself or herself or
another when using defensive force that is intended or
likely to cause death or serious bodily harm to another if
both of the following apply:

(1) The person against whom the defensive force was used
was in the process of unlawfully and forcefully entering,
or had unlawfully or forcefully entered, a home, motor
vehicle, or workplace, or if that person had removed or
was attempting to remove another against that person’s
will from the home, motor vehicle, or workplace.

(2) The person who uses defensive force knew or had reason
to believe that an unlawful or forcible entry or unlawful
and forcible act was occurring or had occurred.

N.C. Gen. Stat. § 14-51.2 (b). Accordingly, “A person who uses force as permitted by

this section is justified in using such force and is immune from civil or criminal

liability for the use of such force[.]” Id. § 14-51.2(e).

The evidence, taken in the light most favorable to Defendant, shows Tim

forcibly entered Defendant’s truck, removed Nicole from the driver’s seat against her

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Opinion of the Court

will, and put her in a choke hold on the ground. Defendant approached them from

where he had been sitting near the house and struck Tim. The trial court reasoned,

and the State argues on appeal, a defense of motor vehicle instruction was

inappropriate because Defendant was not in the motor vehicle when Tim forcibly

entered it and was therefore not an “occupant” for the purposes of Section 14-51.2.4

We agree with the trial court’s reasoning.

We recently examined the meaning of “occupant” as used in this statute,

holding that in specific circumstances it may encompass a person not physically

located within their home or vehicle when they apply defensive force. See State v.

Williams, 297 N.C. App. 512, 911 S.E.2d 286 (2024), review allowed, 918 S.E.2d 635

(N.C. 2025). In Williams the evidence, taken in the light most favorable to the

defendant, showed he was sitting in his vehicle when the victim opened his door and

repeatedly punched him in the face. Id. at 528, 911 S.E.2d at 298. The victim was

armed with a gun, and he continued punching the defendant even after the defendant

had successfully disarmed him. Id., 911 S.E.2d at 299. The defendant exited the

vehicle and stood up; the victim came around to where he stood and continued

attacking him. Id. While standing directly next to the driver’s side door and still

under attack, the defendant shot the victim twice. Id.

Our analysis of whether the instruction was required in Williams hinged on

4 We note the jury was instructed on defense of another.

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Opinion of the Court

whether the defendant was still an “occupant” of the vehicle after exiting it. We noted

that although the words “operator” and “owner” were statutorily defined, the

legislature had chosen to use the term “occupant,” which it did not define. Id. at 523,

911 S.E.2d at 295 (citing N.C. Gen. Stat. § 20-4.01 (1), (23a), (27)b., (46a).)5 We held

the term “occupant” was ambiguous, and examined the language, object, and spirit of

the self-defense statute to effectuate legislative intent. Id. at 525, 911 S.E.2d at 296.

The statute broadens the common law in multiple ways: by applying it to vehicles as

well as the home, and by including circumstances in which an assailant “had

removed” a lawful occupant. Id. at 525, 911 S.E.2d at 297. We noted a foundational

principle of common law self-defense allows an occupant to defend their home against

an intruder, and that “the law does not require such householder to flee or to remain

in his house until his assailant is upon him, but he may open his door and shoot his

assailant.” Id. (citing State v. Blue, 356 N.C. 79, 86-87, 565 S.E.2d 133, 138 (2002)).

Accordingly, we held “the lawful occupant, under specific circumstances—including

those where he is no longer within the home, motor vehicle, or workplace—may

exercise deadly defensive force against his assailant.” Id. at 527, 911 S.E.2d at 298

(emphasis in original).

5 We also noted the term “occupant,” as used in the context of the Fourth Amendment right

against searches and seizures and includes situations where a defendant is “in the immediate vicinity
of, and close enough such that he could have access to, the residence,” is inapplicable to the self-defense
context. Id., distinguishing State v. Tripp, 381 N.C. 617, 619, 631-32, 873 S.E.2d 298, 302, 308-09
(2022).

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Opinion of the Court

Williams recognizes the defense may apply to the use of force by a person “no

longer within” the home or vehicle. Id. Unlike in Williams, however, in this case

Defendant was not “inside [the] motor vehicle at the time of an unlawful and forceful

entry of the vehicle by another person.” Id. at 533, 911 S.E.2d at 301 (Stroud, J.,

concurring). Instead, the evidence, taken in the light most favorable to Defendant,

showed that he approached his vehicle only after Tim had removed Nicole from the

driver’s seat. Because he was not within the vehicle during any portion of Tim’s

intrusion into it, he is not an “occupant” of the vehicle for the purposes of the statute.

Therefore, Defendant was not an occupant of the motor vehicle. Thus,

Defendant does not fall under the coverage of the defense of motor vehicle statute.

Consequently, the trial court did not err by refusing to instruct the jury on defense of

a motor vehicle.

Conclusion

Accordingly, for the foregoing reasons, we vacate Defendant’s conviction for

Assault Inflicting Serious Bodily Injury. The matter is remanded for sentencing on

the lesser-included offense of Assault Inflicting Serious Injury. The trial court did not

err in the evidentiary or jury instruction issues raised by Defendant.

NO ERROR IN PART; VACATED IN PART AND REMANDED.

Judge ZACHARY concurs. Judge MURRY concurs in part and dissents in part

by separate opinion.

• 32 - No. COA25-9 – State v. Butler

MURRY, Judge, concurring in part and dissenting in part.

I concur in parts II, III, IV, and V of the majority opinion that the trial court

did not err by admitting evidence of Nicole driving over Tim’s leg and the resulting

injuries; by admitting footage from the Ring camera over Defendant’s foundation

objection; by instructing the jury on flight; and by refusing to instruct the jury on

Defense of a Motor Vehicle, respectively. But I respectfully dissent in part I of the

majority opinion holding that the trial court erred by denying Defendant’s motion to

dismiss for insufficient evidence. I would instead hold that the trial court properly

submitted to the jury the question of whether a “serious bodily injury” occurred.

N.C.G.S. § 14-32.4(a) (2025).

The dispositive question on this final point is whether the State presented

substantial evidence from which a jury could “reasonably” infer that Tim suffered

serious bodily injury, State v. Johnson, 199 N.C. 429, 431 (1930) (emphasis added),

i.e., an “injury that create[d] or cause[d] a substantial risk of death, a permanent or

protracted condition that cause[d] extreme pain, permanent or protracted loss or

impairment of the function of any bodily member or organ, and/or prolonged

hospitalization.” The question is not whether the evidence compels that conclusion.

The majority holds that “insufficient evidence . . . support[s] the ‘serious bodily injury’

element of the offense” because Tim’s injuries are not serious bodily injury “as defined

by statute and relayed to the jury.” In my view, this holding applies the wrong
STATE V. BUTLER

Murry, J., concurring in part and dissenting in part

standard of review and “invade[s]” “the province of the jury.” State v. Prince, 182 N.C.

788, 790 (1921).

When determining the substantiality of the evidence, we must view the

evidence “in the light most favorable to the State,” give it “the benefit of every

reasonable inference[,] and resolv[e] any contradictions in its favor.” State v. Dover,

381 N.C. 535, 547 (2022). Substantial evidence is any “relevant evidence” that

“tend[s] to prove guilt or which reasonably leads to this conclusion as a fairly logical

and legitimate deduction . . . beyond a reasonable doubt.” State v. Franklin, 327 N.C.

162, 171–72 (1990). Where the record contains “a[ny] combination” of “substantial

evidence, whether direct or circumstantial . . . to support a finding that . . . the

defendant committed” “the offense charged,” “the case is for the jury and the motion

to dismiss should be denied.” State v. Winkler, 386 N.C. 572, 574 (2015) (quoting State

v. Golphin, 352 N.C. 364, 458 (2000)). Put differently, we review only the evidence’s

sufficiency for the jury, not its weight or credibility. See State v. Fritsch, 351 N.C. 373,

379 (2000).

Our task is to analyze the State’s evidence, and the State offered evidence of

Tim’s injuries. In my opinion, “the brutality of the assault itself” helps to show how

and why Tim suffered head trauma, facial fractures, loss of consciousness, significant

pain, and overnight hospitalization. At trial, he testified to partially losing

consciousness due to Defendant’s initial blow and fading out of consciousness as

Defendant continued to strike him. Even after Tim fell to the ground and pleaded for

2
STATE V. BUTLER

Murry, J., concurring in part and dissenting in part

Defendant to stop, Defendant continued to strike him as multiple witnesses

unsuccessfully attempted to intervene. Tim was transported to the hospital that night

and remained hospitalized overnight. He testified that Defendant beat him to the

point that he suffered a bloody nose and black and blue bruising under his eye that

lasted for up to a week. Tim further testified that he experienced “quite a bit” of pain

while in the hospital and for several days thereafter, and that he was prescribed pain

medication as a result of the pain. The State also introduced Tim’s medical records

showing an acute fracture of his right orbit’s inferior wall (fractured eye socket), an

acute comminuted fracture of his right maxillary sinus’s posterior wall (broken cheek

bone), and a parietal scalp hematoma (lacerated scalp). I believe a jury could

“reasonabl[y] infer[ ]” injuries statutorily serious enough to withstand a motion to

dismiss. State v. Ash, 193 N.C. App. 569, 574–75 (2008).

The majority concludes that the State’s evidence “does not demonstrate that

there was either a prolonged hospitalization, a substantial risk of death, loss or

impairment of the function of any bodily member or organ, or that Tim suffered from

a ‘permanent or protracted condition’ that caused extreme pain” because Tim testified

that he was released from the hospital next day and did not suffer lasting impairment

as a result of his injuries. The majority suggests that we are to determine whether

the “result of the injuries included a risk of death or a protracted condition causing

extreme pain” “[r]egardless of the extent of the victim’s injuries.” (Emphases added.)

But I would hold that the jury—sitting as the factfinder—can do so in light of the

3
STATE V. BUTLER

Murry, J., concurring in part and dissenting in part

extent of the victim’s injuries. Tim’s testimony that his pain resolved within days and

that he did not have the prescribed pain medication prescription filled does not negate

the jury’s ability to infer the seriousness of the injuries at the time Defendant inflicted

them. See Franklin, 327 N.C. at 171–72.

Applying the proper standard of review by viewing this evidence “in the light

most favorable to the State,” I would hold that the State presented sufficient evidence

from which a reasonable jury could have inferred—and, in fact, did infer—that

Defendant created a substantial risk of death or a protracted condition causing

extreme pain. State v. Rose, 339 N.C. 172, 192 (1994). I decline to invade the jury’s

province by reweighing the evidence and inferring otherwise on appeal. See State v.

Chekanow, 370 N.C. 488, 499 (2018) (“[E]vidence is . . . certainly not for the appellate

court to reweigh . . . .”). I would hold that the trial court properly denied Defendant’s

motion to dismiss his charge of assault inflicting serious bodily injury. The case was

properly submitted to the jury to weigh the evidence. After deliberation, the jury

returned a guilty verdict on assault inflicting serious bodily injury and I would decline

to reverse this result. Thus, I respectfully dissent in part.

4