IN THE MATTER OF:
Alamance County
FOYSTER LAWSON, IV No. 00 J 205
Attorney General Roy Cooper, by Assistant Attorney General
Roberta Ouellette, for the State.
Rebecca Harris for respondent-appellant.
THOMAS, Judge.
Respondent, Foyster Lawson, IV, was adjudicated delinquent
based on a finding that he committed the offense of assault with a
deadly weapon inflicting serious injury in violation of N.C. Gen.
Stat. § 14-32(b). He appeals and, based on the reasons discussed
herein, we reverse.
The State presented evidence at the hearing which tends to
show the following: On 18 May 2001, the respondent, as well as
Blake Rodriguez, Randy Hawkins, and Rayshard Moses, were playing
behind Rodriguez's home in Burlington, North Carolina. Respondent
took a BB gun from Rodriguez and walked into the middle of a creek.
He shot the gun, and the four boys heard someone yell “ow” from thedirection in which respondent had aimed. Respondent dropped the
gun, started to run away and told his friends to do the same. A
short time later, Officer Kenneth Barker of the Burlington Police
Department was called to the De Sales Trading Company where he met
with David Yandell. Yandell had been shot and was bleeding from
his upper right thigh.
On 25 June 2001, respondent was adjudicated a delinquent
juvenile for having shot Yandell. Respondent was committed to the
Department of Juvenile Justice and Delinquency Prevention for
placement in a youth academy for an indefinite term of not less
than six months.
Respondent contends there was insufficient evidence to sustain
the adjudication, but respondent did not move for a dismissal at
the close of the evidence. He is therefore ordinarily precluded
from raising this issue on appeal. In re Clapp, 137 N.C. App. 14,
19, 526 S.E.2d 689, 693 (2000); In re Davis, 126 N.C. App. 64, 66,
483 S.E.2d 440, 441-42 (1997); N.C. R. App. 10(b)(3).
Nevertheless, we exercise our discretion under Rule 2 and review
the merits of this case. N.C. R. App. P. 2.
In reviewing the denial of defendant's motion to dismiss, this
Court must determine whether the evidence, when viewed in the light
most favorable to the State, is sufficient to allow a reasonable
juror to find defendant guilty of the essential elements of the
offense beyond a reasonable doubt. See State v. Jones, 147 N.C.
App. 527, 545, 556 S.E.2d 644, 655 (2001), disc. rev. denied, 355
N.C. 351, 562 S.E.2d 427 (2002). The State is entitled to allfavorable inferences reasonably drawn from the evidence. State v.
Tucker, 347 N.C. 235, 243, 490 S.E.2d 559, 563 (1997), cert.
denied, 523 U.S. 1061, 140 L. Ed. 2d 649 (1998). Although the
evidence supporting a finding of the defendant's guilt must be
substantial, it need not exclude every reasonable hypothesis of
innocence to survive a motion to dismiss. See State v. Riddick,
315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986).
The essential elements of the offense in the instant case
require a showing that the there was an (1) assault; (2) with a
deadly weapon; (3) inflicting serious injury; (4) not resulting in
death. State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261
(1997). Respondent, in his sole assignment of error, argues there
was insufficient evidence to support a finding of the first three
elements of the offense.
Respondent contends that insufficient evidence was presented
to establish an assault. Respondent admits that his statement to
Officer Barker, acknowledging he knew about the man who was shot
and would talk about it at trial, approached an admission of
knowledge of the alleged shooting. However, he argues this was
insufficient to establish assault because the state failed to
present evidence of the corpus delicti. “The naked extra-judicial
confession of guilt by a defendant must be supported by evidence
aliunde which establishes the corpus delecti. The corpus delecti
may be established by direct or circumstantial evidence.” State v.
Bishop, 272 N.C. 283, 299, 158 S.E.2d 511, 522 (1968) (internal
citations omitted). Testimony at trial established that respondent fired the gun,
an exclamation was heard from the direction toward which the shot
was fired and the victim was found in that direction bleeding from
his upper thigh after being shot. This evidence is sufficient to
establish the element of assault when viewed in the light most
favorable to the State.
Defendant next claims insufficient evidence was presented to
establish that a serious injury occurred.
Cases that have addressed the issue of the sufficiency of
evidence of serious injury appear to stand for the
proposition that as long as the State presents evidence
that the victim sustained a physical injury as a result
of an assault by the defendant, it is for the jury to
determine the question of whether the injury was serious.
State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994).
In the instant case, the evidence tends to show the victim's
wound was bleeding at the time the investigating officer arrived.
The trial court viewed photographs of the wound. Finally, Officer
Barker testified that he advised the victim to seek medical
treatment for the injury. This evidence of bodily injury is
sufficient to support the trial court's finding of a serious
injury.
Defendant finally contends there was insufficient evidence to
establish that the BB gun was a deadly weapon. A deadly weapon for
the purposes of this offense is any instrument which is likely to
produce death or great bodily harm, under the circumstances of its
use. State v. Parker, 7 N.C. App. 191, 195, 171 S.E.2d 665, 667(1970). “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.”
Id.
Determination of whether a BB gun is a dangerous weapon is
specific to the facts of the case. “For a jury to find that a BB
gun is a dangerous weapon, there must be evidence in the record of
the BB gun's capability to inflict death or great bodily injury.”
State v. Fleming, 148 N.C. App. 16, 25, 557 S.E.2d 560, 565 (2001).
BB guns have been found to be deadly weapons under certain
circumstances. In State v. Pettiford, this Court found a BB gun to
be a dangerous weapon as a matter of law where evidence showed that
the victim was shot at close range and the metal slug lodged in his
skull. 60 N.C. App. 92, 99, 298 S.E.2d 389, 393 (1982). In State
v. Westall, this Court allowed jury consideration of a charge of
robbery with a dangerous weapon when evidence showed defendant held
a pellet gun pressed to a clerk's back in line with her kidneys,
and the investigating officer testified that such a weapon fired at
point-black range was life-threatening. 116 N.C. App. 534, 537,
543, 449 S.E.2d 24, 26, 30, disc. rev. denied, 338 N.C. 671, 453
S.E.2d 185 (1994).
Officer Barker, the investigating officer in the instant case,
was questioned concerning the weapon at trial. He indicated he was
not an expert regarding such weapons, had “shot them when he was
younger," and was aware that the more times such a rifle was pumped
the more powerful the shot became. No further evidence waspresented as to the deadly nature of the weapon. Furthermore,
testimony indicated defendant was in a creek behind a house at the
time of the shooting and the victim was outside a factory which was
also behind the house. Unlike in Pettiford and Westall, defendant
was not within close range of the victim.
The evidence presented regarding the manner in which the BB
gun was used and the condition of the victim in this case is
insufficient to support a finding that the weapon was deadly, even
when viewed in the light most favorable to the State. Therefore,
we reverse the adjudication of delinquency based on the offense of
assault with a deadly weapon inflicting serious injury and remand
for both entry of an adjudication based on assault inflicting
serious injury and for a new dispositional hearing.
REVERSED AND REMANDED.
Judge WALKER concurs.
Judge BIGGS concurs in result only.
Report per Rule 30(e).
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