An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-496


Filed: 1 April 2003


         v.                        Hertford County
                                No. 01 CRS 1516

    Appeal by defendant from judgment entered 16 November 2001 by Judge W. Douglas Albright in Hertford County Superior Court. Heard in the Court of Appeals 17 March 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

    Louie Wilson, III, for defendant appellant.


    Leo Lamont Futrell (“defendant”) appeals from his conviction and resulting sentence entered upon a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury. For the reasons stated herein, we find no error by the trial court.     At trial, the State's evidence tended to show that on 1 May 2001, defendant stabbed D'Mitri Askew (“the victim”) during an altercation initiated by defendant. Defendant was sixteen years old and the victim was seventeen years old at the time of the incident. When the victim exited the school bus on the afternoon of 1 May 2001, he observed defendant and defendant's two cousins, Ron Lewter (“Lewter”) and Derrick Raynor (“Raynor”), standingbeside a white station wagon across the street from his house. Lewter was the victim's next-door neighbor, and he had known him for approximately eight years. The victim also knew defendant and Raynor casually from school. As he passed the boys, the victim spoke to Lewter. According to the victim, defendant then stepped towards him and shoved him, whereupon the victim dropped his book bag and shoved defendant. Defendant then pulled a knife from his back pocket and stabbed the victim. The victim ran home and told his grandmother that defendant stabbed him with a “purplish-black butterfly knife.”
    The victim's grandmother drove the victim to the hospital, where he informed the attending physician that he had been stabbed with a knife in the chest. The victim indicated that his pain level was “a ten” on a scale of zero to ten, ten being “the worst pain you've ever had.” The emergency room physician diagnosed the injury as a stab wound to the anterior chest that punctured and partially collapsed the victim's lung. The physician also determined that the wound was consistent with a knife wound, and that it was potentially life-threatening because of its location near the victim's heart. According to the physician, if the wound were a quarter of an inch deeper, the injury could have been fatal. The hospital kept the victim overnight for observation purposes and released him the following day.
    Defendant introduced evidence through the testimony of his cousins, Lewter and Raynor, who were present during the 1 May 2001 incident. Their testimony tended to show that the victim initiateda “slapboxing” contest with defendant against defendant's wishes. The victim repeatedly swung at defendant before defendant “started tussling” with the victim. Defendant told the victim to stop at least five times, and continued to block the victim's blows until the last hit, when the victim slapped defendant across the face. At that point, defendant apparently stabbed the victim, although no one saw a knife. Raynor testified that defendant had extracted a nail from the rear tire of his car earlier that afternoon and was holding it in his hand. Raynor stated that defendant pierced the victim's chest with the nail.
    Defendant testified on his own behalf. He admitted that, in repelling the victim's blows, he stabbed him with the nail. Defendant denied having a knife at any time during the incident and testified that he did not intend to stab the victim with the nail.
    Upon the close of all the evidence, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury. During sentencing, defendant presented evidence in mitigation. The trial court made no findings regarding any mitigating or aggravating factors, however, and sentenced defendant to a presumptive term of twenty to thirty-three months' imprisonment. From his conviction and resulting sentence, defendant appeals.
    On appeal, defendant asserts that the trial court (1) abused its discretion by sentencing defendant to a presumptive term of imprisonment and (2) erred in its instructions to the jury. For the reasons stated herein, we find no merit to defendant'sarguments, and we uphold his conviction of assault with a deadly weapon inflicting serious injury.
    Defendant first argues that the trial court abused its discretion in sentencing him to a presumptive term when there was “overwhelming, uncontradicted evidence” to support a mitigated sentence. While defendant concedes that the trial court may “reject evidence of mitigation if sentencing in the presumptive range,” defendant contends that under State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990), certain comments by the trial judge made after the first day of trial “infer[red] a harsher sentence if the trial continue[d], . . . entitl[ing] [him] to a new sentencing hearing.” We disagree.
    As recognized by defendant, a judge is not required to make findings in aggravation or mitigation if he sentences a defendant in the presumptive range of sentences. See N.C. Gen. Stat. § 15A- 1340.16(c) (2001); State v. Brown, 146 N.C. App. 590, 594, 553 S.E.2d 428, 431 (2001), appeal dismissed and disc. review denied, 356 N.C. 306, 570 S.E.2d 734 (2002). Moreover, the trial court's statements here are readily distinguishable from those of the court in Cannon, supra, the case relied upon by defendant. In Cannon, the trial court referenced the State's offer of a plea bargain and his advice to defendant to accept that bargain. The Cannon Court held that the defendant was entitled to a new sentencing hearing because it could “be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trialby jury[.]” Cannon, 326 N.C. at 39, 387 S.E.2d at 451.
    In the instant case, the trial court made the following statement prior to summarizing the evidence presented by the State and defendant on the first day of trial:
            I tell you, I sit here in the middle of this. And I know nothing about any of the parties. I do not know them or have not had the occasion to deal with them in any way, shape or manner. So this all comes to me fresh.

            I don't live here, I'm from over two hundred miles away so I don't hear any talk in any of [the] neighborhoods or any comments about the case. All I've heard is what I've listened to from each witness who has testified.

            And so I began to get the pieces of the case along by the witness. Here's what I've heard, if the witnesses can be reconciled and the account cleared up to be a consistent development.
After giving a summary of the evidence, the court noted its interpretation of the case's posture:
            That's kind of where we are. Whatever help that might be in having an honest, serious discussion about where everybody stands. That's kind of where -- where this thing is shaking out. And that's through -- I've heard all the State's case and I've heard a significant portion of the defendant's case [in]cluding Mr. Lewter, Mr. Raynor and the defendant.

            We'll resume this trial in the morning, but you may want to have a very serious discussion about the unsuccessful posture this case has now developed into.

            When you try these cases, you've got the case that you hope develops and then you've got the case that actually develops. And sometimes they are not the same - it's not going in the same direction.     Defendant's contention to the contrary, the trial judge's statement at the end of the first day of trial cannot be read to mean that he was contemplating giving defendant a harsher sentence should he choose to continue with a presentation of evidence. Rather, a close reading of the record reveals an honest assessment of the merits of the case by the trial court after the State's and defendant's presentation of evidence. Further, as conceded by defendant, the trial court was not required to make findings in mitigation here because he was sentenced to a presumptive term. Accordingly, defendant cannot show that he is entitled to a new sentencing hearing. We overrule this assignment of error.
    Defendant next argues that the trial court erred in submitting an inaccurate charge to the jury on the defense of accident and misadventure. Again, we disagree.
    It is well settled that a judge need not give a requested instruction verbatim. See State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626, 629, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997). As this Court recently stated in State v. West, 146 N.C. App. 741, 554 S.E.2d 837 (2001), “[a] judge [need only] provide the jury with the substance of an instruction requested by a party if the instruction is correct and supported by the evidence at trial.” Id. at 743, 554 S.E.2d at 839.
    Here, defendant requested, and the trial court gave an instruction on accident and misadventure. Significantly, the trial court utilized the pattern jury instruction for accident, but omitted the words “misadventure” and “wrongful purpose.” Whencomparing the proposed instruction with the instruction given by the court, it becomes immediately apparent that the trial court gave the requested instruction in substance. On this record, we conclude that the omission of the words “misadventure” and “wrongful purpose” was not prejudicial. Defendant's argument to the contrary fails.
    In conclusion, we hold that the trial court did not abuse its discretion in sentencing defendant to a presumptive term of imprisonment, and further, that it did not err in its instructions to the jury.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***