STATE OF NORTH CAROLINA
v. Carteret County
No. 01 CRS 50553
SHIRROD HENDERSON WARREN
Attorney General Roy Cooper, by Assistant Attorney General Ann
B. Wall, for the State.
Sofie W. Hosford for defendant-appellant.
WYNN, Judge.
Defendant Shirrod Henderson Warren was found guilty of assault
with a deadly weapon with intent to kill inflicting serious
injury. The State's evidence tends to show that on 13 February
2001, defendant and two friends went to an apartment shared by
defendant's cousin, Henry Ward, and Michael Sherrod. Defendant
entered Ward's room and talked to him about Sherrod's girlfriend,
Gail Willis, who he believed was interfering in his relationship
with his girlfriend. Sherrod overhearing the conversation, became
upset and confronted defendant. Defendant and Sherrod began to
argue and defendant asked Sherrod to “cool down.” Ward asked them
to take the argument outside. Sherrod, however, continued to argueand told defendant that he “would stick a gun in [defendant's]
mouth.” Thereafter, Sherrod returned to his room to get dressed,
when Sherrod came out of the room, he moved quickly toward
defendant. Sherrod disregarded all attempts by others to calm him
down, and continued into the kitchen, whereupon defendant stabbed
Sherrod approximately seven or eight times from behind. Sherrod
reacted by grabbing defendant and slamming him against the
refrigerator. Subsequently, the two were separated by defendant's
friends and defendant dropped the knife.
Sherrod was taken to the hospital, where he underwent
emergency surgery and was hospitalized for three days. Sherrod
testified that he can no longer perform his job duties in
construction due to his injuries.
Officer Samuel Smith, of the Morehead City Police Department,
testified that defendant was at all times cooperative with the
police in their investigation. Officer Smith stated that defendant
told police during his initial interview that he and Sherrod were
having an argument, when “Sherrod told him sit right here and I am
going to get something and come back and show you. . . . And he
stated that he took this to mean that the victim was going to get
a gun and come back and shoot him.” It was not until a second
interview the officer stated that defendant told police Sherrod
“actually stated that he was going to get a gun.”
After the State's presentation of evidence, defendant
testified on his own behalf. Defendant stated that after the 13
February 2001 altercation with Sherrod, he called 911 from thescene, and later called the Morehead City Police Department from K-
mart. Defendant further stated that he stabbed Sherrod because
Sherrod had threatened to shoot him and he believed that Sherrod
had gone to his bedroom to obtain a gun. He explained, “I didn't
want to get shot and it was a knife on the kitchen table and when
he got close enough to me I grabbed the knife and started sticking
him. I figured that I would stick him until he dropped the gun or
until he left me alone.”
At the close of all of the evidence, defendant moved to
dismiss the charge against him, which was denied by the trial
court. The jury then found defendant guilty of assault with a
deadly weapon inflicting serious injury and the trial court,
imposed an intermediate punishment and placed defendant on
supervised probation for 48 months. Defendant appeals.
While defendant argues “plain error” in the trial court's
denial of his motion to dismiss, the record shows that he properly
preserved the issue of the sufficiency of the evidence for
appellate review pursuant to N.C.R. App. P. 10(b)(3). See N.C.R.
App. P. 10(b)(3) (2001)(providing that regardless of whether a
defendant makes a motion to dismiss at the close of the State's
evidence, he “may make a motion to dismiss . . . at the conclusion
of all the evidence”). As an aside, we note that contrary to
defendant's belief, “plain error” analysis is not available in this
jurisdiction to determine the issue of the sufficiency of the
evidence. See State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575,
578 (2000) (stating that “plain error analysis applies only toinstructions to the jury and evidentiary matters”); N.C.R. App. P.
10(b)(3) (providing failure to preserve the issue of the
sufficiency of the evidence precludes appellate review of the issue
on appeal). The standard of review on a motion to dismiss based
upon insufficiency of the evidence is well settled:
[I]n ruling on a motion to dismiss for
insufficiency of the evidence, the trial court
must consider the evidence in the light most
favorable to the State and give the State
every reasonable inference to be drawn
therefrom . . . If there is substantial
evidence, either direct or circumstantial,
that the defendant committed the offense
charged, then a motion to dismiss is properly
denied.
State v. Gainey, 355 N.C. 73, 89, 558 S.E.2d 463, 474 (2002)
(citations omitted). Substantial evidence is relevant evidence
that “a reasonable mind might accept as adequate to support a
conclusion.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990) (citations omitted). “Contradictions and discrepancies
[in the evidence] are for the jury to resolve and do not warrant
[dismissal].” State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d
773, 780 (2001).
By his first assignment of error, defendant argues that there
was insufficient evidence to support the instant assault charge
since he established that he acted in self-defense as a matter of
law. We disagree.
Our Court recently reiterated, “'The theory of self-defense
entitles an individual to use such force as is necessary or
apparently necessary to save himself from death or great bodily
harm.'” State v. Poland, ___ N.C. App. ___, ___, 560 S.E.2d 186,192 (2002) (citations and quotations omitted). A defendant is
entitled to perfect self-defense if:
(1) it appeared to defendant and he believed
it to be necessary to kill . . . in order to
save himself from death or great bodily harm;
and
(2) defendant's belief was reasonable in that
the circumstances as they appeared to him at
that time were sufficient to create such a
belief in the mind of a person or ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray . . .; and
(4) defendant did not use excessive force,
i.e., did not use more force than was
necessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.
State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992)
(quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73
(1981)). In the event that the defendant was the aggressor, and
did not first abandon the fight and give notice to his adversary of
his intent to abandon the fray, or used excessive force in
defending himself, the law of imperfect self-defense (and not
perfect self-defense) is to be applied. “The State has the burden
of proving that a defendant is not entitled to the defense.”
Poland, ___ N.C. App. at ___, 560 S.E.2d at 192.
In the case sub judice, the State presented evidence from
which a reasonable finder of fact could find that defendant used
excessive force in defending himself in the 13 February 2001
altercation with Michael Sherrod. All of the evidence shows that
Sherrod was the aggressor in the affray. Indeed, the evidencetends to show that initially the altercation between defendant and
Sherrod consisted of only a heated verbal exchange. As the
argument escalated, Sherrod threatened to “stick a gun” in
defendant's mouth. Although Sherrod denied doing so, defendant
testified that Sherrod told him that he would kill him. According
to defendant, he thought that Sherrod was going to retrieve a
weapon when he turned and went into his bedroom after threatening
to “stick a gun” in defendant's mouth. Defendant, therefore,
assumed that Sherrod had a weapon when Sherrod exited his bedroom
and began to move into the kitchen towards defendant. Assuming
that this were all true, it became readily apparent that Sherrod
was not armed after defendant stabbed him for the first time below
his ear, and Sherrod turned with both hands raised to block another
blow. However, the evidence shows that defendant continued to stab
Sherrod at least some five or six more times. Such action by
defendant was surely excessive in light of the fact that Sherrod
was unarmed, and defended himself from defendant's knife attack by
grabbing defendant and slamming him against the refrigerator.
In light most favorable to the State, there was sufficient
evidence to support a conclusion that defendant did not act in
reasonable self-defense, because of the excessive force utilized.
Accordingly, the trial court did not err in denying defendant's
motion to dismiss. This assignment of error is, then, overruled.
By his second assignment of error, defendant argues that the
evidence was insufficient to show that he intended to kill the
victim, so as to support a charge of assault with a deadly weaponwith intent to kill inflicting serious injury. We, however,
conclude that defendant cannot show prejudicial error in the trial
court's denying his motion to dismiss the charge of assault with a
deadly weapon with intent to kill inflicting serious injury, in
that defendant was convicted of the lesser included offense of
assault with a deadly weapon inflicting serious injury, an offense
which does not require a showing of an intent to kill. See e.g.,
State v. Bryant, 282 N.C. 92, 101, 191 S.E.2d 745, 751 (1972)
(holding the denial of the defendant's motion to dismiss the charge
of second degree murder harmless, where the jury returned a verdict
finding the defendant guilty of the lesser offense of
manslaughter); State v. Williamson, 122 N.C. App. 229, 468 S.E.2d
840 (1996) (holding that the trial court's instruction as to
specific intent on the charge of assault with a deadly weapon with
intent to kill inflicting serious injury was harmless error, where
the defendant was convicted of the lesser offense of assault with
a deadly weapon inflicting serious injury). This assignment of
error is, therefore, summarily overruled.
Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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