Opinion
No. COA10-1101
Filed 5 July 2011 This case not for publication
Appeal by defendant from judgments entered 9 April 2010 by Judge Theodore S. Royster, Jr. in Rowan County Superior Court. Heard in the Court of Appeals 23 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Reita P. Pendry, for defendant-appellant.
Rowan County Nos. 07 CRS 55268-69.
The trial court did not commit plain error by allowing a police officer to testify regarding why defendant's injuries were documented in his report. Defendant was not prejudiced by the trial court's submission of the charge of assault with a deadly weapon with intent to kill inflicting serious injury to the jury where defendant was convicted of a lesser-included offense. The trial court did not err in its first-degree burglary jury instruction where it instructed the jury that any of three possible felony charges would support a guilty verdict. The trial court did not err in instructing the jury that a knife with a two-inch, serrated blade was a deadly weapon as a matter of law.
I. Factual and Procedural Background
In 2007, Sheba Kennedy (Kennedy) and Stacy Chambers (defendant) had been involved in a relationship for approximately a year and a half. Kennedy was eight months pregnant with defendant's child. On 8 August 2007, they had an argument at the residence of defendant's mother. Kennedy left the residence and called a taxi to drive her to her mother's residence. Kennedy went to sleep for two hours. At approximately 4:00 a.m., she was awakened by a "loud banging at the door." Kennedy woke her sister, but did not answer the door. Defendant's knocks on the door got louder and louder. Kennedy told defendant that she was not going to open the door and that he needed to leave. Kennedy asked her sister to call the police because she believed defendant was "probably going to do something to [her]." Defendant had previously left several threatening messages on Kennedy's voicemail, including: (1) "You know I'm gonna kill ya. You know that[;]" (2) "You best believe I'm gonna kill your motherf________ a___. Let me find ya;" and (3) "I'm gonna sit and wait on you girl when I catch you . . . I'ma stick you with a godda — knife watch."
Kennedy and her sister were on the telephone with the police when defendant "kicked the door in." Kennedy ran down the hallway fleeing from defendant and felt something in her back. Defendant was yelling that he was going to stab her. Kennedy continued to run from defendant, tripped over something, and "ended up sitting on the chair arm of the couch by the door." Defendant then stabbed her in the left breast with a knife. Kennedy's sister then hit defendant in the head with a baseball bat. Defendant was "dazed" and wobbled out of the residence.
Police and paramedics responded to the 911 call. Officer Brent Rowland (Officer Rowland) observed "a laceration or puncture wound to the chest area, and also one to the back area" of Kennedy. Kennedy was transported to the hospital in an ambulance where she was treated and released.
Officer Chris Nesbitt (Officer Nesbitt) subsequently located defendant in the neighborhood abutting the residence of Kennedy's mother and ordered him to get on the ground. Defendant was carrying a blood-soaked, white shirt in his hand. Defendant refused to get on the ground so Officer Nesbitt shot defendant with his taser. Defendant was subsequently arrested. (T. 156). A knife was found in his front, right pocket.
Defendant was indicted for the felonies of first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. Defendant was also indicted for being an habitual felon. Defendant was found not guilty of attempted first-degree murder, but was found guilty of first-degree burglary and the lesser-included offense of assault with a deadly weapon with intent to kill. Defendant pled guilty to being an habitual felon. The trial court found defendant to be a prior record level IV for felony sentencing purposes. The trial court sentenced defendant to two consecutive sentences of 116 to 149 months imprisonment.
Defendant appeals.
II. Testimony Regarding Injuries to Defendant's Hands
In his first argument, defendant contends that the trial court committed plain error by allowing a police officer to testify about injuries to defendant's hands "when he was not qualified as an expert by experience or training and no foundation was shown for his opinion testimony" in violation of Rule 701 of the Rules of Evidence. We disagree.
A. Standard of Review
Defendant concedes that he failed to object to the challenged testimony at trial. Thus, we review this argument under plain error analysis. "[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a ` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted).
B. Analysis
Rule 701 of the Rules of Evidence provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen. Stat. 8C-1, Rule 701 (2009).
At trial, Officer Jack Blalock (Officer Blalock) testified that he documented the injuries to defendant's hands "because it's very common that during attacks the assailant will suffer cuts himself." (T. 241). Officer Blalock further explained:
Usually, during a struggle, especially when you're using a small knife, it slips in your hand. A lot of times the assailants overstab; in other words, use too much force, more than necessary to stab an individual, and the knife slips in their hand. Number 2, often their hands become bloody, slippery, and during the struggle they will cut themselves. It's very common.
Defendant characterizes Officer Blalock's testimony as opinion testimony that defendant injured his hand on the knife during the attack. This is not correct. When asked directly whether he knew how defendant injured his hand, Officer Blalock responded, "I could only speculate." He also testified that defendant had told him that he sustained the injuries when Kennedy and her sister attacked him. Officer Blalock's testimony was no more than an explanation for the reason defendant's injuries were documented as evidence.
Even assuming arguendo that admitting this testimony was error, it does not rise to the level of plain error. Overwhelming evidence presented at trial tended to show that defendant had threatened to kill Kennedy multiple times prior to the incident and that he repeatedly assaulted Kennedy with the knife on 8 August 2007.
This argument is without merit.
III. Assault with a Deadly Weapon with Intent to Kill Inflicting Serious Injury
In his second argument, defendant contends that the trial court erred in submitting the charge of assault with a deadly weapon with intent to kill inflicting serious injury to the jury on the basis that there was insufficient evidence of "serious injury." We disagree.
We first note that defendant was not found guilty of this offense. Defendant was found guilty of the lesser-included offense of assault with a deadly weapon with intent to kill. Defendant argues that "[e]ven though the jury acquitted [defendant] on this charge, he suffered prejudice."
In State v. Cody, 225 N.C. 38, 33 S.E.2d 71 (1945), a case decided over 65 years ago, our Supreme Court addressed this exact argument. In Cody, the defendant was charged with felony assault with a deadly weapon with intent to kill inflicting serious injury. Id. at 39, 33 S.E.2d at 72. The trial court instructed the jury on that offense as well as the lesser offense of misdemeanor assault with a deadly weapon. Id. The jury returned a guilty verdict on the misdemeanor assault charge. Id. On appeal, the defendant argued that the trial court's jury instructions were erroneous based upon the submission of the felony charge to the jury. Our Supreme Court held:
There is very slight, if any, evidence of serious injury within the meaning of the statute. Thus, if there was error in the instructions, it rests in the fact that the court submitted the felony charge to the jury. Even so, on this count there was a verdict of not guilty. Hence defendant has not been prejudiced thereby.
Id. (emphasis added). Thus, because defendant was acquitted of the offense of which he now complains, defendant has not been prejudiced by the trial court's submission of assault with a deadly weapon with the intent to kill inflicting serious injury to the jury.
As part of his second argument, defendant also contends that his first-degree burglary conviction should be reversed because the jury was instructed that it could use the offense of assault with a deadly weapon with intent to kill inflicting serious injury as the predicate felony. Defendant's argument is misplaced.
The trial court specifically instructed the jury that any of three possible felony charges would support a verdict of guilty on the charge of first-degree burglary:
I want to make sure that you understand on the first degree burglary charge, that when we say that the defendant broke and entered with the intent of committing a felony therein, I want you to understand that assault with a deadly weapon with intent to kill is a felony and would be sufficient for that box; or, assault with a deadly weapon inflicting serious injury would be a felony sufficient for that; or, assault with a deadly weapon with intent to kill inflicting serious injury would be a sufficient felony for that.
To be guilty of first-degree burglary, defendant must have intended to commit a felony at the time of the breaking into the residence. State v. Maness, 321 N.C. 454, 461, 364 S.E.2d 349, 352 (1988). Any of the three felony assaults upon which the trial court charged the jury would have been sufficient to support that element of first-degree burglary.
These arguments are without merit.
IV. "Deadly Weapon" Instruction
In his third argument, defendant contends that the trial court erred by instructing the jury that the knife used in the attack was a deadly weapon as a matter of law. We disagree.
"A deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm. The definition of a deadly weapon clearly encompasses a wide variety of knives." State v. Sturdivant, 304 N.C 293, 301, 283 S.E.2d 719, 725 (1981) (internal citations omitted). A pocketknife with a two and a half inch blade has been found to be a deadly weapon as a matter of law. State v. Collins, 30 N.C. 407, 412 (1848); see also State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986) ("small pocketknife"); State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198 (1985) (sharply-pointed box cutter); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665 (1970) (steak knife).
In the instant case, the pocketknife used in the attack was admitted into the evidence as State's exhibit 14A and was published to the jury. Photographs of the pocketknife were also admitted into the evidence and showed that the blade of the knife is approximately two inches long, has a sharp tip, and a serrated edge. The handle of the knife is 3 inches long, bringing the total length of the knife to slightly over 5 inches long. Defendant stabbed Kennedy in the left portion of her chest with the knife.
Defendant argues that the knife did not inflict serious injury so it should not have been considered a deadly weapon. While defendant is correct in asserting that the extent of the injury produced can be a factor considered in this determination, State v. Lednum, 51 N.C. App. 387, 390, 276 S.E.2d 920, 923, disc. review denied, 303 N.C. 317, 281 S.E.2d 656 (1981), our Supreme Court has stated that "[i]n order to be characterized as a `dangerous or deadly weapon,' an instrumentality need not have actually inflicted serious injury." Young, 317 N.C. at 417, 346 S.E.2d at 638 (emphasis added). The trial court did not err in instructing the jury that the knife used in the attack constituted a deadly weapon as a matter of law.
We further note that defendant repeats this exact argument in his contention that the trial court erred in denying his motions to dismiss at the close of the evidence. The entirety of his argument as to the motions to dismiss is as follows:
Defendant couches his argument in terms of insufficiency of the evidence, but only advances the argument that the trial court erred in instructing the jury that the knife used was a per se deadly weapon.
As to the first offense [assault with a deadly weapon with intent to kill inflicting serious injury], the trial court instructed the jury that a knife was a "deadly weapon" as a matter of law. T. 391, 393. As to the second offense [first-degree burglary], the court instructed the jury that the predicate felony was the assault with a dangerous weapon with intent to kill, inflicting serious injury, and as to that charge, the court instructed that a knife was a "deadly weapon" as a matter of law. Id. Therefore, as to both offenses, the court relieved the State of the obligation to prove an essential element of the offense, that Chambers used a deadly weapon. The trial court erred in taking the issue from the jury as to whether the pocket knife was a deadly weapon.
Because we have held that the trial court did not err in instructing the jury that the knife constituted a deadly weapon as a matter of law, this argument is without merit.
NO ERROR.
Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).