State v. Moore

824 S.E.2d 922 (Table)

STATE of North Carolina

v.Jermaine MOORE Defendant.

No. COA18-591

Court of Appeals of North Carolina.

Filed: March 19, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph E. Herrin, for the State.

Dunn, Pittman, Skinner & Cushman, PLLC, New Bern, by Rudolph A. Ashton III, for defendant-appellant.

BERGER, Judge.

On October 26, 2017, Jermaine Moore ("Defendant") was convicted of assault with a deadly weapon inflicting serious injury and sentenced to serve forty-two to sixty-three months in prison. Defendant timely appeals, arguing that the trial court erred by (1) instructing the jury that the pocketknife used was a deadly weapon as a matter of law; (2) denying Defendant’s request to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury; and (3) failing to instruct the jury, sua sponte , on the defense of accident. We find no error.

Factual and Procedural Background

Defendant and Wendy Dawn Moore ("Moore") were married on December 4, 2015 and separated on March 14, 2016. During their four-month marriage, Moore and Defendant had several altercations in which Moore had been physically injured and required the involvement of law enforcement.

On August 21, 2016, Moore met Defendant in the parking lot of the Comfort Inn in Winterville to discuss their relationship and the possibility of reconciliation. Soon after she had joined Defendant in his car, however, Moore and Defendant began fighting. Moore testified that Defendant had grabbed her cell phone from her hand, "opened the driver’s side door and slammed it on the ground." Defendant then grabbed Moore’s wrist and arm to prevent her from leaving his car. They struggled until Defendant pulled out a pocketknife and slashed Moore’s inner right forearm. Moore did not realize that Defendant had cut her until she saw that she was "gushing blood like a water fountain." After wrapping Moore’s arm in a towel to try to slow down the bleeding, Defendant drove them both to a nearby hospital.

At the hospital, Moore received seventeen stitches and was told she would need reconstructive surgery to repair nerve and tendon damage. Moore told her doctor that she had cut herself "playing with a knife." She returned to her home in Kentucky later that night without reporting Defendant to the police. While driving back to Kentucky, Defendant called Moore to apologize.

On August 28, 2016, Moore returned to North Carolina to press charges against Defendant. Moore told Officer Alex Smith ("Officer Smith") of the Greenville Police Department how she had sustained her injuries. Officer Smith then filed an incident report and took photographs of Moore’s week-old wound. Later that evening, Defendant was arrested. On March 27, 2017, Defendant was indicted for the felonies of first-degree kidnapping and assault with a deadly weapon inflicting serious injury.

At trial, the State introduced the two photographs that Officer Smith had taken of Moore’s injured forearm. The photographs depicted seventeen stitches that had closed the laceration that spanned the width of Moore’s right inner forearm. During Moore’s testimony, the State had her show the jury the scar that was still visible on her forearm. Additionally, Moore testified that she still suffered from numbness in portions of her arm and index finger.

On October 26, 2017, Defendant was convicted of felony assault with a deadly weapon inflicting serious injury. Defendant was sentenced to forty-two to sixty-three months in prison. Defendant timely appealed, and argues that the trial court erred by (1) instructing the jury that the pocketknife used was a deadly weapon as a matter of law; (2) denying Defendant’s request to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury; and (3) failing to instruct the jury, sua sponte , on the defense of accident.

Analysis

I. Deadly Weapon Jury Instruction

Defendant first contends that the trial court erred by instructing the jury, over Defendant’s objection, that Defendant’s knife was a deadly weapon as a matter of law. We disagree.

"Where the defendant preserves his challenge to jury instructions by objecting at trial, we review the trial court’s decisions regarding jury instructions de novo. " State v. Hope , 223 N.C. App. 468, 471, 737 S.E.2d 108, 111 (2012) (purgandum¹ ). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).

By statute, the essential elements of assault with a deadly weapon with intent to inflict serious injury are (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; (4) not resulting in death. A deadly weapon is any article, instrument or substance which is likely to produce death or great bodily harm.

State v. Lawson , 173 N.C. App. 270, 279, 619 S.E.2d 410, 415-16 (2005) (citations and quotation marks omitted); see also N.C. Gen. Stat. § 14-32(b) (2017).

The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. Where there is no conflict in the evidence regarding both the nature of the weapon and the manner of its use, the applicable principles in determining its deadly character [have been well stated]:

Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury.

State v. Palmer , 293 N.C. 633, 642-43, 239 S.E.2d 406, 412-13 (1977) (purgandum ).

"Our research has disclosed no case which unequivocally holds that a knife is always a dangerous weapon per se ." State v. Smallwood , 78 N.C. App. 365, 368, 337 S.E.2d 143, 144 (1985). Nevertheless,

[t]he definition of a deadly weapon clearly encompasses a wide variety of knives. For instance, a hunting knife, a kitchen knife and a steak knife have been denominated deadly weapons per se . A pocketknife is also unquestionably capable of causing serious bodily injury or death. In State v. Collins , the [Supreme] Court opined that a pocketknife, having a blade two and a half inches long, was a deadly weapon as a matter of law. 30 N.C. 407, 409, 412 (1848).

State v. Sturdivant , 304 N.C. 293, 301, 283 S.E.2d 719, 725-26 (1981) (citations omitted). Our appellate courts have similarly identified the following knives as deadly or dangerous per se : a utility knife with a "very sharp," one-inch blade, State v. Torain , 316 N.C. 111, 121, 340 S.E.2d 465, 471 (1986) ; "an open pocketknife with a ‘two and a half to three inches blade,’ " State v. Mason , 79 N.C. App. 477, 478-79, 339 S.E.2d 474, 475-76 (1986) ; and "a knife with a three-inch blade ... when used as a weapon in an assault," State v. Cox , 11 N.C. App. 377, 380, 181 S.E.2d 205, 207 (1971) (citation omitted).

When assessing whether a particular knife should be considered a deadly weapon as a matter of law,

the circumstances of each case must be considered: for example, the extent of the threat to the victim; the physical stature of the knife wielder; the weakened state of the victim; or whether or not and to what extent the victim was actually injured. The circumstances of the case, rather than the physical description of the knife itself, ultimately determine this issue. ...

Where the victim has in fact suffered serious bodily injury or death, the courts have consistently held that a knife is a dangerous or deadly weapon per se absent production [of the knife itself into evidence at trial] or [a] detailed description [of the knife via trial testimony].

Smallwood , 78 N.C. App. at 368-69, 337 S.E.2d at 144-45 (citations omitted).

Here, the pocketknife used in the assault was neither introduced into evidence nor described in detail at trial. Nevertheless, the State’s evidence tended to show that Moore had suffered a life-threatening injury due to the amount of blood loss. Defendant had slashed Moore’s inner forearm with a pocketknife causing her to "gush[ ] blood like a water fountain." After he had wrapped Moore’s arm in a towel in an attempt to slow the "blood pouring from her arm," Defendant immediately drove them both to a nearby hospital. At the hospital, Moore received seventeen stitches and was told that she would need reconstructive surgery to repair nerve and tendon damage. Due to the severity of Moore’s injuries inflicted by Defendant’s use of the pocketknife, the trial court did not err by instructing the jury that the pocketknife used in the assault was a deadly weapon as a matter of law.

II. Lesser Included Offense Jury Instruction

Defendant also argues that if this Court finds the trial court erred by instructing the jury that the knife used in the assault was a deadly weapon per se , then the trial court additionally erred by denying his request to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. However, this Court has previously found "that it was the proper function of the trial court to determine that this knife was a deadly weapon per se . As a result, there was no error in the judge’s failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict." State v. Roper , 39 N.C. App. 256, 258, 249 S.E.2d 870, 871 (1978) (citations omitted).

III. Defense of Accident Jury Instruction

Defendant argues that the trial court...