Appeal by defendant from judgment entered 16 May 2000 by Judge
Howard R. Greeson, Jr., in Guilford County Superior Court. Heard
in the Court of Appeals 24 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Rudolf Maher Widenhouse & Fialko by M. Gordon Widenhouse, Jr.,
for defendant appellant.
McCULLOUGH, Judge.
Defendant Corey Jermaine Lowe was tried before a jury at the
15 May 2000 Criminal Session of Guilford County Superior Court.
Defendant was indicted on one count of assault with a deadly weapon
inflicting serious injury by superceding indictment on 20 March
2000, and as being an habitual felon by superceding indictment on
21 February 2000.
The facts showed that on 6 October 1999, Tony Gibson and two
others arrived between 10:30 p.m. and 11:00 p.m. at a Greensboro
night club called Club Sensation. The group was drinking and
dancing during what was a crowded night at the club. After awhile,
Gibson, the victim, went to the restroom. While there, someone
called out from behind saying, “You're a brave motherf___er.”
Gibson turned to see defendant and some of his friends. At this point, Tony Gibson had known who defendant was for
several years. In 1994, Gibson was involved in an altercation with
Tim Lowe, defendant's brother. Gibson had allegedly pulled his own
younger brother away from a group of people that included Tim Lowe
who were beating a man with a gun. Tim Lowe pointed the gun at
Gibson and said he would kill him. Tim then apparently shot the
man he was beating. Gibson got a shotgun from his car and fired a
shot in the air. The two exchanged gunfire, and Gibson eventually
shot Tim Lowe who died a year and a half later as a result of these
wounds.
Defendant and Jamie Lowe found and shot Tony Gibson the day
after Tim was shot. They further threatened Gibson by calling his
hospital room and warning, “You got to die for killing our
brother.” The police guarded his hospital room.
Tony Gibson was charged with first-degree murder when Tim Lowe
eventually died. He pled guilty to voluntary manslaughter and
served three years of a six-year sentence. Since this early
incident, Gibson had not seen or spoken to defendant until 6
October 1999. Thus, as soon as Tony Gibson turned away from the
group, they rushed him and began to beat him. Gibson testified
that he was hit and “stomped” and probably beaten with the lid of
the commode, although Gibson was not sure about the lid. He had
noticed that the lid was not broken before the fight, and that
after the fight it was broken. Gibson said that defendant had said
that the fight was for his brother. According to the victim's
witnesses, security guards broke up the fight and allowed defendantand his friends to leave. Testimony from the club employees
disputed that claim.
Gibson was taken to the hospital after passing out at the
club. He suffered from a fractured nose, loss of hearing in one
ear, and a gash on his head that required staples to close. He was
released the next day, but missed two weeks of work.
The jury was presented with three possible verdicts: assault
with a deadly weapon with intent to kill inflicting serious injury,
assault with a deadly weapon inflicting serious injury, or not
guilty. They found defendant guilty of assault with a deadly
weapon inflicting serious injury on 15 May 2000. Defendant then
pled guilty to being an habitual felon. Defendant was determined
to have a prior record level III, and was sentenced in the
aggravated range to a minimum term of 120 months and a maximum term
of 153 months.
Defendant brings forth the following assignments of error on
appeal: The trial court erred (1) by failing to instruct the jury
on misdemeanor assault inflicting serious injury as a lesser
included offense of assault with a deadly weapon with intent to
kill inflicting serious injury where there was evidence from which
the jury could find defendant did not use a deadly weapon; (2) in
overruling defendant's objection to improper opinion testimony by
the victim regarding whether he was struck by the toilet seat lid
as this testimony was beyond his personal knowledge and constituted
an improper opinion; (3) in aggravating defendant's sentence based
upon an unsupported and inaccurate observation that defendant liedabout the incident which was neither an appropriate aggravating
factor nor supported by the evidence; and (4) by imposing a
sentence in excess of the presumptive by failing to find a
statutory mitigating factor supported by uncontradicted evidence.
I.
Defendant's first contention is that the trial court erred by
failing to submit to the jury the lesser included offense of
misdemeanor assault inflicting serious injury. The record shows
that defendant had an opportunity to object at trial but did not.
Thus, we review the omission of this instruction under the plain
error standard.
The plain error rule “allows review of
fundamental errors or defects in jury
instructions affecting substantial rights,
which were not brought to the attention of the
trial court.” In order to obtain relief under
this doctrine, defendant must establish that
the omission was error, and that, in light of
the record as a whole, the error had a
probable impact on the verdict.
State v. Bell, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293
(1987) (citation omitted).
Defendant argues that he was entitled to the instruction on
misdemeanor assault inflicting serious injury found in N.C. Gen.
Stat. § 14-33(c)(1) (2001). This statute prohibits committing any
assault or assault and battery during which the person inflicts
serious injury upon another person.
Id. Misdemeanor assault
inflicting serious injury, along with simple assault, are lesser
included offenses of assault with a deadly weapon with intent to
kill inflicting serious injury and assault with a deadly weaponinflicting serious injury.
Bell, 87 N.C. App. at 635, 362 S.E.2d
at 293;
see also State v. Weaver,
264 N.C. 681, 683, 142 S.E.2d
633, 635 (1965).
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.
State v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498
(1983). According to defendant, the testimony and evidence
established that victim Tony Gibson was beaten with fists and
“stomped,” presumably with feet. There was also some conflicting
testimony that the victim was beaten with the lid of the commode.
What this evidence did not establish, at least conclusively, was
that a deadly weapon was used. Thus, defendant contends that the
trial court was required to give the instruction on the lesser
included offense of misdemeanor assault inflicting serious injury.
We agree. “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.”
Owens, 65 N.C. App. at 110, 308
S.E.2d at 497. There is sufficient evidence from which the jury
could find that the fists and commode lid, if believed, were not
used as deadly weapons but did inflict serious injury.
A deadly weapon is “any instrument which is
likely to produce death or great bodily harm,under the circumstances of its use . . . .
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.”
State v. Smith, 187 N.C. 469, 470,
121 S.E. 737 (1924). 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 are well stated in
Smith,
id.:
“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.” (Citation
omitted.)
If there is a conflict in the evidence
regarding either the nature of the weapon or
the manner of its use, with some of the
evidence tending to show that the weapon used
or as used would not likely produce death or
great bodily harm and other evidence tending
to show the contrary, the jury must, of
course, resolve the conflict.
State v. Palmer, 293 N.C. 633, 642-43, 239 S.E.2d 406, 412-13
(1977) (emphasis added) (footnote omitted).
This Court has dealt with a similar situation in
Bell, 87 N.C.
App. 626, 362 S.E.2d 288.
Bell involved a plain error review of
the failure of the trial court to instruct the jury on simple
assault and misdemeanor assault inflicting serious injury. Therewas conflicting evidence as to whether a gun was used to beat the
victim. In our case the question is whether the fists and toilet
seat became deadly weapons rather than was a per se deadly weapon
used, but the principle is the same. This Court said, “There is
simply no way to ascertain what verdict the jury might have reached
had they been given an alternative which did not include the use of
a deadly weapon.”
Bell, 87 N.C. App. at 635, 362 S.E.2d at 293.
Bell held that the failure to instruct on the lesser included
offense of misdemeanor assault inflicting serious injury
constituted plain error. We hold the same here.
The State argues that the evidence proves and the jury would
have found defendant guilty of felonious assault inflicting serious
bodily injury under N.C. Gen. Stat. § 14-32.4 (2001). Because of
this, an instruction on misdemeanor assault inflicting serious
injury, found in N.C. Gen. Stat. § 14-33(c), would not have been
proper because that statute states a person can be guilty of the
misdemeanor “[u]nless the conduct is covered under some other
provision of law providing greater punishment,” which the felony
would be. However, this Court has recently rendered the opinion of
State v. Hannah, ___ N.C. App. ___, ___ S.E.2d ___ (filed 16 April
2002), which holds that felonious assault inflicting serious bodily
injury is not a lesser included offense of assault with a deadly
weapon with intent to kill inflicting serious injury, and it is
error for the trial court to submit it to the jury as such.
Id.
Thus, the State's harmless error argument fails.
Because we hold that it was plain error for the trial courtnot to instruct on misdemeanor assault inflicting serious injury,
it is not necessary to reach defendant's other assignments of
error.
Reversed.
Judges WYNN and BIGGS concur.
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