Opinion
No. 07-997.
Filed April 1, 2008.
Haywood County No. 06CRS52164.
Appeal by Defendant from judgment entered 10 May 2007 by Judge Dennis J. Winner in Superior Court, Haywood County. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Durwin P. Jones, for the State. Carol Ann Bauer for Defendant-Appellant.
Larry Edward Smith (Defendant) appeals from a conviction of assault with a deadly weapon inflicting serious injury. The State's evidence at trial tended to show: On 24 June 2006, Defendant, Jonathan Liebhart (Liebhart), and John Sparks (Sparks) drove to the home of Terry Carver (Carver) to go horseback riding. It started to rain, so the men sat on the patio and drank beer. When they ran out of beer, Liebhart and Sparks drove to a nearby store, purchased a case of beer, and returned to Carver's house. The men continued to drink beer. Liebhart stepped on the "screen top of an aquarium" and broke it. This angered Carver, and Carver asked Liebhart to leave. Liebhart said, "all right[] and . . . I'm taking my beer with me[.]" As Liebhart and Sparks walked toward Sparks' truck, Liebhart felt a tap on his shoulder. When Liebhart turned around, Defendant stabbed Liebhart with a pocketknife.
Liebhart and Sparks got into Sparks' truck. The truck came around a curve in the driveway and slid into a ditch. Liebhart ran to a neighbor's house and an ambulance was called. Haywood County Sheriff's Deputy Keith Beasley (Deputy Beasley) responded to the call and found Liebhart lying on the living room floor. The occupants of the house informed Deputy Beasley that Liebhart had come from Carver's house. Deputy Beasley went to Carver's house and spoke with Carver and Sparks. Police checked Carver's house and did not locate anyone else.
The following day, Detective Larry Bryson (Detective Bryson) went to Defendant's house. Defendant was standing on the porch, and Detective Bryson asked Defendant to come with him to his office. After Defendant was advised of his rights, Defendant admitted to stabbing Liebhart.
Defendant testified that he went to visit Carver to see Carver's new horses. After the men had been drinking a while, Liebhart "started breaking aquarium equipment." Carver told Sparks to "get [Liebhart] out of here." Defendant said he saw Liebhart come after Carver with a side grinder, and that Defendant stabbed Liebhart twice "[i]n the lower part of his stomach." Defendant testified that after he saw Sparks' truck wreck, he and Carver ran to the truck, but Liebhart was not there when they arrived. Defendant testified that he "walked across the hill to the neighbors . . . because there's a lady and some kids that live down there to make sure they [were] okay, to let them know what was going on." On cross-examination, Defendant testified that he returned to Carver's house where Sparks told him that police had taken Carver to jail. Defendant admitted to not flagging down a police car because he "did not know what all was going on." Defendant then called his wife and she picked him up "at the top of the hill."
The trial court instructed the jury on the charge of assault with a deadly weapon with intent to kill inflicting serious injury, and also instructed on the lesser-included offenses of assault with a deadly weapon inflicting serious injury, and assault inflicting serious injury.
The jury found Defendant guilty of assault with a deadly weapon inflicting serious injury and the trial court sentenced Defendant to twenty-four months to thirty-eight months in prison. Defendant appeals.
Defendant assigns error to the trial court's instruction on flight. Defendant asserts the flight instruction was improper because Defendant "did not take any steps to avoid apprehension[.]" We disagree.
An instruction on flight is proper as long as "`there is some evidence in the record reasonably supporting the theory that [the] defendant fled after commission of the crime charged.'" State v. Thompson, 328 N.C. 477, 489-90, 402 S.E.2d 386, 392 (1991) (quoting State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)). "Mere evidence that [a] defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that [the] defendant took steps to avoid apprehension." Id. at 490, 402 S.E.2d at 392. However, "[t]he fact that there may be other reasonable explanations for [a] defendant's conduct does not render the instruction improper." State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977).
In this case, the record includes evidence of flight. Defendant admitted leaving the crime scene and returning to Carver's house after police had left. Defendant saw a police car, but he did not flag it down. Instead, Defendant called his wife to pick him up and Defendant was apprehended at his home the next day. Taken in the light most favorable to the State, this evidence is sufficient to support an inference that Defendant fled the scene and took some steps to avoid apprehension. See State v. Lloyd, 354 N.C. 76, 119-20, 552 S.E.2d 596, 626 (2001) (flight instruction not error where the defendant drove around for thirty minutes to "clear his head" and then turned himself in). Although Defendant did testify that he left the crime scene due to concern for a neighbor and her children, "[w]hat [the] defendant's flight meant, if anything, was a question of fact, not law, that was properly left to the jury[.]" State v. Byrd, 78 N.C. App. 627, 629, 337 S.E.2d 665, 666 (1985). Finally, Defendant has failed to show that the trial court's instruction on flight was prejudicial error, as there is no reasonable probability that the instruction caused the jury to return a different verdict. See N.C. Gen. Stat. § 15A-1443(a) (2007). This assignment of error is overruled. No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).