In his first assignment of error, defendant contends that the
trial court erred by refusing to instruct the jury on the issue of
self-defense. We disagree.
“A defendant is entitled to a jury instruction on self-defense
when there is evidence from which the jury could infer that he
acted in self-defense.”
State v. Allred, 129 N.C. App. 232, 235,
498 S.E.2d 204, 206 (1998). “The right of self-defense is only
available, however to 'a person who is without fault, and if a
person voluntarily, that is aggressively and willingly, enters into
a fight, he cannot invoke the doctrine of self-defense unless he
first abandons the fight, withdraws from it and gives notice to his
adversary that he has done so.'”
Id. (quoting,
State v. Marsh, 293
N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). In determining whether
the trial court should have submitted an instruction to the jury on
self-defense, all evidence is considered in the light most
favorable to defendant.
Id.
In the instant case, the evidence reveals that defendant
voluntarily and willingly entered into the fight. After Cefalo
informed defendant not to return to the bar, he charged at her with
a pocketknife and tackled her to the ground. Serious injuries were
inflicted to Cefalo's right forearm and Morrison's face. Defendant
presented no evidence tending to show that he attempted to abandonthe fight. Even when viewed in the light most favorable to
defendant, the evidence does not support an instruction on self-
defense because defendant initiated the altercation. We therefore
conclude that defendant, as the aggressor, was not entitled to an
instruction on self-defense. This assignment of error is
overruled.
In his next assignment of error, defendant contends that the
trial court erred in denying his motion to dismiss the charge of
assault with a deadly weapon inflicting serious injury. We
disagree.
When reviewing a motion to dismiss, we must consider the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn therefrom.
State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231 (1996). “The
test of whether the evidence is sufficient to withstand a motion to
dismiss is whether a reasonable inference of defendant's guilt may
be drawn therefrom, and the test is the same whether the evidence
is direct or circumstantial.”
Id. “When a defendant moves for
dismissal, the trial court is to determine only whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.”
State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Lucas, 353 N.C. 568, 580-81, 548 S.E.2d 712, 721 (2001). If there
is substantial evidence of each element of the charged offense andof the defendant being the perpetrator of the offense, the case is
for the jury and the motion to dismiss should therefore be denied.
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
The elements of the charge of assault with a deadly weapon
with intent to kill inflicting serious injury under N.C. Gen. Stat.
§ 14-32(a)(1999) are: (1) an assault, (2) with a deadly weapon, (3)
with intent to kill, (4) inflicting serious injury and (5) not
resulting in death.
See State v. Wampler, 145 N.C. App. 127, 132,
549 S.E.2d 563, 566 (2001).
Defendant contends that because the State failed to present
substantial evidence that would associate the knife with the
commission of the offense, his motion to dismiss should have been
granted. However, contrary to defendant's contention, several of
the State's witnesses testified that they in fact, saw defendant
with a knife moments before the incident occurred. Both Morrison
and Cefalo testified that they sustained severe cuts during the
altercation with defendant. Additionally, the pocketknife was also
found in a location where the altercation occurred. At trial, the
State offered medical evidence tending to show that the lacerations
sustained by each victim were made by a sharp object consistent
with a knife. We therefore conclude that substantial evidence was
presented from which a jury could find that the pocketknife was the
deadly weapon that inflicted serious injury and that defendant
perpetrated the offense. Thus, the motion to dismiss was properly
denied. This assignment of error is overruled.
Defendant next contends that the trial court erred inadmitting the pocketknife into evidence. Defendant argues that the
pocketknife recovered from the bar and identified at trial had
undergone a material change because the blade was closed and had no
bloodstains. We disagree.
As a general rule, “weapons may be admitted in evidence,
where there is evidence tending to show that they were used in the
commission of a crime.”
State v. Wilson, 280 N.C. 674, 678, 187
S.E.2d 22, 24 (1972). Before the weapon is admitted into
evidence, it must be (1) identified as the same object involved in
the incident, and (2) shown that the object has not undergone a
material change.
State v. Brown, 101 N.C. App. 71, 75, 398 S.E.2d
905, 907 (1990). The trial court has sound discretion in
determining the “standard of certainty required to show that the
evidence offered is the same as the one involved in the incident
and has not been changed materially.”
Id.
Defendant's contention that the pocketknife had materially
changed because the blade was closed is without merit.
The State's
witnesses identified the pocketknife as the same pocketknife they
witnessed in defendant's hand in the bar. Officer Vince Nash of
the Concord Police Department testified that upon completion of his
test for fingerprints on the pocketknife, he closed the blade,
which Officer Nash testified, is not an unusual procedure.
Defendant further contends that the pocketknife had undergone
a material change because the blade presented at trial had no
visible bloodstains. This argument is also without merit. While
there may have been discrepancies in the State's evidence regardingthe existence of bloodstains on the pocketknife, the presence or
absence of bloodstains merely affects the weight or probative value
of the evidence, not its admissibility and is thus, a matter for
the jury.
See State v. Grooms, 353 N.C. 50, 72, 540 S.E.2d 713,
727 (2000),
cert. denied, ____ U.S. _____, 151 L. Ed. 2d 54 (2001).
This assignment of error is therefore overruled.
In his next assignment of error, defendant contends that the
trial court erred by not allowing defendant to cross-examine Cefalo
regarding a pre-trial tape-recorded statement she made to law
enforcement officers. We note that defendant cites no authority
in support of this contention in violation of our Rules of
Appellate Procedure.
See N.C.R. App. P. 28(b)(5)(2002).
Furthermore, a review of the transcript reveals that the trial
court never indicated that defendant could not cross-examine Cefalo
regarding her tape-recorded pre-trial statement, but merely stated
that “the proper foundation had not been laid at [that] point.”
Defendant was free to continue laying a foundation for the eventual
admission of the tape but chose not to do so. This assignment of
error is overruled.
In his last assignment of error, defendant contends that the
trial court erred in: (1) determining that one aggravating factor
outweighed six mitigating factors and (2) sentencing him in the
aggravated range of punishment.
Defendant first argues that the trial court erroneously
concluded that the one aggravating factor found by the trial court
outweighed seven mitigating factors. We reject this argument.
The Fair Sentencing Act is an attempt to
strike a balance between the inflexibility of
a presumptive sentence which insures that
punishment is commensurate with the crime,
without regard to the nature of the offender;
and the flexibility of permitting punishment
to be adapted, when appropriate, to the
particular offender . . . . The sentencing
judge's discretion to impose a sentence within
the statutory limits, but greater or lesser
than the presumptive term, is carefully
guarded by the requirement that he make
written findings in aggravation and
mitigation, which findings must be proved by a
preponderance of the evidence; that is, by the
greater weight of the evidence.
State v. Parker, 315 N.C. 249, 258, 337 S.E.2d 497, 502 (1985)
(quoting
State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 696-97
(1983)).
“A sentencing judge properly may determine in appropriate
cases that one factor in aggravation outweighs more than one factor
in mitigation and vice versa.”
Id. A trial court's weighing of
aggravating and mitigating factors will not be disturbed on appeal
absent an abuse of discretion.
Id. Furthermore, the balance
struck by the trial judge in “weighing the aggravating factors
against the mitigating factors . . . will not be disturbed unless
it is 'manifestly unsupported by reason[.]'”
Id. at 258, 337
S.E.2d at 503
(quoting
White v. White, 312 N.C. 770, 777, 324
S.E.2d 829, 833 (1985)).
In the instant case, the sole aggravating factor determined by
the trial court was that “defendant committed the offense while on
pretrial release on another charge.” The sentencing minutes
indicated that defendant had a pending charge of discharging a
weapon into occupied property and possession of a firearm by afelon at the time he was charged with assault with a deadly weapon
with intent to kill inflicting serious injury. After weighing the
factors, the trial court concluded that this aggravating factor
outweighed the mitigating factors and there is no evidence in the
record to suggest that the trial court abused its discretion by
this finding.
As to his second contention, defendant argues that while the
written judgment of the trial court reflects that the mitigating
factors outweighed the aggravating factors, it imposed a sentence
in the aggravated range.
Our review of the transcript clearly reflects that the trial
judge announced in open court that the aggravating factor
outweighed the mitigating factors and imposed a sentence in the
aggravated range. The fact that the mitigation box was checked is
an obvious clerical error, because it is inconsistent with the
trial court's oral statements. We therefore remand this matter to
the trial court for the limited purpose of correcting the clerical
error in the determination section of the Findings of Aggravating
and Mitigating Factors form to reflect its conclusion that the
aggravating factors outweighed the mitigating factors for case no.
99-CRS-11496.
No error; remanded for correction of clerical error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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