State v. OwensAnnotate this Case
308 S.E.2d 494 (1983)
STATE of North Carolina v. Billy Levon OWENS.
Court of Appeals of North Carolina.
November 15, 1983.
*496 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Lennon, Raleigh, for the State.
Sessoms & Williamson by William J. Williamson, Whiteville, and Soles & Phipps by R.C. Soles, Jr., Tabor City, for defendant.
In his first assignment of error, defendant argues the trial judge erred in failing to grant his motion to dismiss at the close of the evidence. A motion to dismiss tests the sufficiency of the evidence to go to the jury and is properly denied if there is substantial evidence of all material elements of the offense charged. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence is considered in the light most favorable to the state, giving it the benefit of all reasonable inferences which can be drawn from the evidence. Id.
In the case at bar, the evidence taken in the light most favorable to the state was clearly sufficient to go to the jury on the issue of second-degree murder and assault with a deadly weapon. Second-degree murder is the unlawful killing of a human being with malice, but without premeditation or deliberation. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1976). Malice can be proven by conduct evincing reckless or wanton disregard for human life. Id. In the case at bar, there was evidence that defendant was armed and the victims were not, and that defendant was the aggressor and had not been threatened or assaulted by the victims. This is sufficient evidence of malice to go to the jury.
Felonious assault with a deadly weapon under G.S. § 14-32 can be shown by evidence of assault with a deadly weapon with intent to kill inflicting serious injury or an assault with a deadly weapon without intent to kill inflicting serious injury. The evidence in the case at bar clearly indicates that a deadly weapona gun *497 was used against Williamson, and that Williamson was wounded in the right arm. This raises sufficient evidence of a serious injury to go to the jury. Defendant's assignment of error is overruled.
Defendant next argues that the trial judge erred by failing to summarize the evidence supporting defendant's alibi defense. A trial judge need only summarize the evidence to the extent necessary to apply the law relevant to the case. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978), G.S. § 15A-1232. The trial judge in this case correctly instructed the jury that defendant was contending he was not present at the time of the fatal shooting, and explained the law applicable if they believed defendant's alibi testimony. This assignment of error is overruled.
In his third assignment of error, defendant contends that the trial judge erred by failing to submit voluntary manslaughter as a possible verdict. Voluntary manslaughter is a lesser included offense of second-degree murder, State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888 (1978), and where there is some evidence of a lesser included offense, the trial judge must submit the issue to the jury even without a request by defendant. State v. Oxendine, 305 N.C. 126, 286 S.E.2d 546 (1982). We hold, however, that there was insufficient evidence of voluntary manslaughter presented at trial to warrant an instruction on this offense. Evidence of voluntary manslaughter may be raised by testimony showing defendant acted in the heat of passion resulting from a sudden provocation or that he used excessive force in self-defense. State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210 (1980). There was no evidence in the case at bar that defendant acted in self-defense. Defendant argues, however, that the state's evidence indicates Nance threw a cigarette butt at him before the shooting, raising the issue of provocation and requiring a jury instruction on voluntary manslaughter. We disagree. The law requires a showing of strong provocation before it will grant a defendant who is charged with second-degree murder a jury instruction on the lesser included offense of voluntary manslaughter. For example, mere insulting words do not constitute sufficient provocation. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975). Generally, there must be an assault or threatened assault to create the level of provocation required. Id. See also State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979), State v. Spicer, 50 N.C.App. 214, 273 S.E.2d 521, app. dismissed, 302 N.C. 401, 279 S.E.2d 356 (1981). We hold that evidence that Nance threw a cigarette butt at defendant does not rise to the level of serious provocation required. Accord, 40 Am.Jur.2d 29, Homicide, § 62 (1968 & 1983 Supp).
In his fourth assignment of error, defendant argues that the trial judge should have submitted a jury instruction on misdemeanor assault with a deadly weapon, under G.S. § 14-33 as well as the charge of felonious assault with a deadly weapon, under G.S. § 14-32. Misdemeanor assault with a deadly weapon is a lesser included offense of felonious assault with a deadly weapon, State v. Weaver, 264 N.C. 681, 142 S.E.2d 633 (1965).
An examination of the record shows, however, that the error was the failure of the trial judge to submit a possible verdict of misdemeanor assault to the jury, with proper instructions. In North Carolina, a trial judge must submit lesser included offenses as possible verdicts, even in the absence of a request by the defendant, where sufficient evidence of the lesser offense is presented at trial. State v. Weaver, supra, citing State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954) (assault with a deadly weapon a lesser included offense of robbery). See also State v. Oxendine, supra (1982) (voluntary manslaughter a lesser included offense of second-degree murder). (Many other jurisdictions require a defendant to request a jury instruction on lesser included offenses. See generally 75 Am. Jur.2d "Trial" § 877 (1974 & 1983 Supp.).)
We hold that in the case at bar, sufficient evidence was presented to require the trial judge to submit misdemeanor assault *498 as a possible verdict to the jury. The primary distinction between felonious assault under G.S. § 14-32 and misdemeanor assault under G.S. § 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor. In the case at bar, it is clear that a deadly weapon was used against Williamson. Thus, if there was some evidence that Williamson's injury was not serious, a verdict of misdemeanor assault should have been submitted to the jury. A judge may instruct a jury that an injury is serious as a matter of law where "... the evidence is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted." State v. Pettiford, 60 N.C.App. 92, 298 S.E.2d 389 (1982). Factors our courts consider in determining if an injury is serious include pain, loss of blood, hospitalization and time lost from work. See e.g., State v. Pettiford, supra, State v. Stephenson, 43 N.C.App. 323, 258 S.E.2d 806 (1979), pet. for disc. rev. denied, 299 N.C. 124, 262 S.E.2d 8 (1980).
In the case before us, however, the record states only that Williamson was treated at a hospital for about three hours. There was no evidence as to the degree of injury to Williamson, either immediate or residual. Such evidence does not warrant an instruction that the wound was serious as a matter of law, since reasonable minds could differ on the issue. Thus, the question was for the jury and defendant must receive a new trial as to the assault charge.
It is not disputed that at the time of sentencing, defendant was seventeen years old. Both parties note and we agree, that the trial judge erred in failing to determine whether defendant would benefit from being sentenced as a committed youthful offender as required under G.S. § 148-49.14, and G.S. § 15A-1340.4(a) for defendants under the age of twenty-one. Under these circumstances, the case must be remanded for resentencing.
As to the assault charge
As to the charge of second-degree murder
Remanded for resentencing.
VAUGHN, C.J., and JOHNSON, J., concur.NOTES
 We also note that in passing sentence, the trial judge found as an aggravating factor, the fact that defendant was armed with a deadly weapon at the time of the crime. This was error. Since use of a deadly weapon is an element of the crime of felonious assault, it may not also be considered as a factor in aggravation. State v. Hammonds, 61 N.C.App. 615, 301 S.E.2d 457 (1983).