Opinion
No. COA14-1135
04-07-2015
STATE OF NORTH CAROLINA v. MICHAEL BRUCE THOMAS.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Cooley Law Office, by Craig M. Cooley, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Lincoln County, 12 CRS 51604 Appeal by defendant from judgment entered 30 August 2013 by Judge William R. Bell in Lincoln County Superior Court. Heard in the Court of Appeals 3 March 2015. Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Cooley Law Office, by Craig M. Cooley, for defendant-appellant. CALABRIA, Judge.
Michael Bruce Thomas ("defendant") appeals his judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury. We find no error.
At a restaurant bar called "Zippers" in Lincolnton, North Carolina, defendant assaulted Bryan Wilfong ("Wilfong") with an octagonal beer mug made of thick glass - "about two inches thick," and "quite heavy." When defendant smashed the heavy beer mug into Wilfong's face, his cheekbone collapsed, and blood gushed from his eyes and nose. Wilfong was transported to Lincoln Hospital. He sustained a broken orbital bone, a crushed cheekbone, and multiple jaw fractures. The doctors surgically installed titanium plates along Wilfong's jaw and eye socket.
Defendant was arrested and indicted for assault with a deadly weapon inflicting serious injury and tried by a jury on 28 August 2013. After receiving jury instructions for that charge, the jury returned a verdict finding defendant guilty. The trial court sentenced defendant to a minimum of 29 months to a maximum of 47 months in the Division of Adult Correction; that sentence was suspended and defendant was placed on supervised probation for 36 months. As a special condition of probation, defendant was to serve 90 days in the Lincoln County Jail. Defendant appeals.
As an initial matter, due to a clerical mistake in his affidavit of indigency, it appeared that defendant was financially able to retain private counsel. Therefore, the trial court incorrectly denied defendant's motion for the appointment of counsel. In a 5 June 2014 order, the trial court corrected the error, appointed counsel, and denied the State's motion to dismiss the appeal.
On appeal, the State renewed its motion to dismiss. The State argues that the appeal should be dismissed because defendant did not timely perfect the appeal. We disagree.
Rule 7 of the North Carolina Rules of Appellate Procedure governs perfection of the trial transcript - a necessary step towards perfecting an appeal. See N.C.R. App. P. 7 (2014). A criminal defendant's responsibilities to perfect an appeal vary depending on his ability to pay for representation. If a defendant is not indigent, Rule 7 allows a defendant fourteen days to contract for a transcript. N.C.R. App. P. 7(a)(2) (2014). However, if indigent, then the clerk of the trial court, not the criminal defendant, orders preparation of the transcript. Id.
Compliance with the Rules of Appellate Procedure is mandatory. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007). However, noncompliance with appellate rules alone does not require an appeal's dismissal since "[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008) (citing Hormel v. Helvering, 312 U.S. 552, 557, 85 L.Ed. 1037, 1041 (1941)); Hart, 361 N.C. at 311, 644 S.E.2d at 202. Accordingly, whether we may "excuse non-compliance with the rules depends on the nature of the default." Dogwood, 362 N.C. at 194, 657 S.E.2d at 363.
Generally, the circumstances of default fall within one of three categories: (1) waiver at trial; (2) defects in appellate jurisdiction; and (3) violation of non-jurisdictional requirements. Id. Defaults within the first category normally justify an appellate court's refusal to consider an issue on appeal. Id. at 195-96, 657 S.E.2d at 364. At the same time, an appellate court may apply a heightened standard of review in the truly exceptional cases, such as plain error review in criminal appeals, in order to correct fundamental errors. Id. at 196, 657 S.E.2d at 364. When default falls within the second category, an appellate court may only dismiss the appeal. Id. at 197-98, 657 S.E.2d at 364-65. When the default falls within the third category,
[n]oncompliance with rules of this nature, while perhaps indicative of inartful appellate advocacy, does not ordinarily give rise to the harms associated with review of unpreserved issues or lack of jurisdiction. And, notably, the appellate court faced with a default of this nature possesses discretion in fashioning a remedy to encourage better compliance with the rules.Id. at 198, 657 S.E.2d at 365.
Noncompliance with Rule 7 of the North Carolina Rules of Appellate Procedure falls squarely within the third category of defaults. See Kennedy v. Polumbo, 209 N.C. App. 394, 397, 704 S.E.2d 916, 919-20 (2011) (stating that "[n]either Rule 7(a)(1) nor Rule 7(b)(2), which deal with the time and manner for ordering, preparation, and delivery of the transcript of the proceedings, are jurisdictional rule requirements."); North Carolina State Bar v. Sossomon, 197 N.C. App. 261, 270-71, 676 S.E.2d 910, 917 (2009) (pointing out that "Rule 7 is a non-jurisdictional defect."); Lawrence v. Sullivan, 192 N.C. App. 608, 618-19, 666 S.E.2d 175, 181 (2008) (describing the plaintiff's Rule 7 errors as "non-jurisdictional").
Violations of non-jurisdictional rules "normally should not lead to dismissal of the appeal." Dogwood, 362 N.C. at 198, 657 S.E.2d at 365. But, when a party's noncompliance with non-jurisdictional rules rises to the level of a "substantial failure" or "gross violation," the court may impose sanctions, including dismissal of the appeal. Id. at 199, 657 S.E.2d at 366; N.C.R. App. P. 25(b), 34(b)(1) (2014). Each determination regarding whether or not noncompliance is a substantial failure or gross violation is a factual inquiry and only the most egregious instances will demand dismissal of the appeal. Dogwood, 362 N.C. at 199-200, 657 S.E.2d at 366. In determining whether noncompliance is either substantial or gross, the court may consider "whether and to what extent the noncompliance impairs the court's task of review," "whether and to what extent review on the merits would frustrate the adversarial process," and "the number of rules violated." Id. at 200, 657 S.E.2d at 366-67.
The State moves to dismiss defendant's appeal based on his alleged failure to adhere to Rule 7 of the North Carolina Rules of Appellate Procedure. However, defendant did not violate Rule 7 because he was indigent and not financially able to contract for a transcript. The Rules of Appellate Procedure recognize that the rules for perfecting an appeal are slightly altered for different defendants depending on their indigency status. It would defeat the purpose of the Rules and of promoting justice to punish the defendant for not bearing a burden that should never have been imposed. Therefore, since defendant did not violate the rule, this Court denies the State's motion to dismiss.
Defendant argues that the trial court committed reversible error by failing to instruct the jury on the lesser-included offense of assault inflicting serious injury. We disagree.
Since a trial court must instruct the jury on all substantial features raised by the evidence, "[f]ailure to instruct upon all substantive or material features of the crime charged is error." State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). Challenges of the trial court's decisions on how to instruct the jury are reviewed de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). Only when the evidence would allow a jury to rationally find a defendant guilty of a lesser-included offense and to acquit him of the greater offense, will a trial court be required to give an instruction on the lesser-included offense. State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).
Misdemeanor assault inflicting serious injury, as defined by N.C. Gen. Stat. § 14-33(c)(1), is a lesser-included offense of felonious assault with a deadly weapon inflicting serious injury. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002). The difference between the two offenses 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.State v. Owen, 65 N.C.App. 107, 110-11, 308 S.E.2d 494, 498 (1983).
A deadly weapon is "an instrument which is likely to produce death or great bodily harm, under the circumstances of its use." State v. Cauley, 244 N.C. 701, 707, 94 S.E.2d 915, 920 (1956) (citing State v. Watkins, 202 N.C. 692, 694, 158 S.E. 393, 394 (1931)). Some instruments, such as a rifle or pistol, are deadly per se; others become deadly because of "the great and furious violence and manner of use." Id. at 707, 94 S.E.2d at 920. A weapon is deadly per se "[w]here the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion." State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924). It is the trial court's responsibility to declare whether a weapon, as a matter of law, is deadly per se. Id. at 470, 121 S.E. at 737. If an instrument is not deadly per se, then it is a question of fact for the jury to determine whether the instrument's manner of use still qualifies it as a deadly weapon. Id. at 470, 121 S.E. at 737.
There are numerous examples in our case law where the trial court declared a knife, hands, a log, and wine bottle deadly weapons. See State v. Walker, 204 N.C. App. 431, 446, 694 S.E.2d 484, 494 (2010) (upholding a trial court's determination that a knife was a deadly weapon despite it not being admitted into evidence); State v. Williams, 201 N.C. App. 161, 179, 689 S.E.2d 412, 422 (2009) (finding defendant's hands and their use sufficient to constitute a deadly weapon); State v. Allen, 193 N.C. App. 375, 378-79, 667 S.E.2d 295, 298 (2008) (holding the defendant's hands were deadly weapons because he was seven inches taller and forty pounds heavier than the victim); State v. Cody, 135 N.C. App. 722, 728, 522 S.E.2d 777, 781 (1999) (determining a log was a deadly weapon). In State v. Morgan, we upheld a trial court's determination that a wine bottle made of thick glass and smashed against a victim's head was a deadly weapon per se. 156 N.C. App. 523, 530, 577 S.E.2d 380, 386 (2003).
Moreover, in cases where an instrument has not even been identified, its deadly character may be inferred from the injuries inflicted. See State v. Phillips, 87 N.C. App. 246, 249, 360 S.E.2d 475, 478 (1987) (maintaining a defendant's conviction where the victim was "diagnosed as having a broken cheekbone and where he was treated for bruises and lacerations"); State v. Greene, 67 N.C. App. 703, 707, 314 S.E.2d 262, 264 (1984) (finding a deadly weapon existed when the object that the defendant used to strike the victim in the head knocked the victim to the floor and caused a hematoma and a laceration to the back of the victim's head).
The State presented evidence that defendant struck Wilfong with a heavy glass beer mug. Defendant used the mug to strike Wilfong in the face and used such sufficient force that it shattered Wilfong's jaw, cheek, and eye socket, and caused blood to gush from Wilfong's eyes and nose. To repair the injuries Wilfong sustained to his face, surgeons inserted titanium plates. The trial court determined that the glass beer mug was a deadly weapon per se.
The State's evidence also supports both the conclusion that defendant used a deadly weapon and that it inflicted serious injury. Since no conflict exists within the evidence and only one conclusion could be reached, it was the trial court's responsibility and not a question of fact for the jury to determine. Morgan, 156 N.C at 530, 577 S.E.2d at 386; Smith, 187 N.C. at 470, 121 S.E. at 737. After hearing such uncontroverted evidence, a jury could not have rationally found that the defendant committed misdemeanor assault inflicting serious injury rather than felony assault with a deadly weapon inflicting serious injury, since a deadly weapon was used and serious injury resulted. Therefore, since the trial court determined that the glass beer mug was a deadly weapon per se and that the extent of Wilfong's injuries supported felony assault with a deadly weapon inflicting serious injury, the trial court was not required and did not err by not instructing the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. We find no error in the trial court's instructions and the judgment.
NO ERROR.
Judges McCULLOUGH and DIETZ concur.
Report per Rule 30(e).