An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-949


Filed: 6 May 2003


         v.                        Richmond County
                                No. 01 CRS 53031


    Appeal by defendant from judgment entered 14 February 2002 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.

    Angela H. Brown for defendant appellant.

    ELMORE, Judge.

    Defendant was charged by warrant with assault with a deadly weapon. He was found guilty in district court. On appeal to superior court he was again found guilty of the charge. From a judgment suspending sentence, he appeals.
    The State presented evidence tending to show that Brandon Chance (Chance) arranged for his wife at the time, Ruth Ann Chance (Mrs. Chance), to pick up some furniture from his residence. Mrs. Chance arrived at the residence accompanied by defendant and her father. Chance testified that as defendant and Mrs. Chance's father loaded the furniture, a dispute arose between Chance and Mrs. Chance over possession of some bed linens. Saying, “I've gotsomething for you, m-----f----r[,]” defendant came running toward Chance and swung at Chance with a knife. Chance put out his arm and pushed Defendant away. Chance pulled a utility knife out of his pocket. Mrs. Chance's father intervened and separated the two men. Defendant left the residence with Mrs. Chance. Chance subsequently pressed charges against defendant.
    Cherry Raines, who is Chance's mother, testified that she was present at Chance's residence when Mrs. Chance, her father and defendant arrived to pick up the furniture. She heard defendant scream, “I've got something for you, m-----f----r.”. She looked and saw defendant, holding a knife, running toward Chance. She yelled a warning to Chance. Defendant swung the knife at Chance, and Chance pushed defendant back. Mrs. Chance's father intervened and held defendant away from Chance.
    Linda Overstreet, who was dating Chance's new house mate, Eric Moretz, at the time also testified for the State that she was at the Chance residence at the time of the incident. She looked out the window and saw defendant, holding a knife, rush at Chance. She yelled to her boyfriend, “Eric, he just pulled a knife on Brandon.” She identified the man who pulled the knife as defendant.
    Mrs. Chance testified for defendant that Chance charged at defendant and pushed him down. She then saw that Chance had a box cutter in his hand. She next saw defendant draw his knife. Her father intervened and separated the two men.
    Defendant presents three assignments of error.

    Defendant first contends that the court erred by denying his motion to dismiss the charge. A motion to dismiss requires the court to determine whether the State has presented substantial evidence of each element of the offense and of the defendant's perpetration of the offense. State v. Earnhardt, 307 N.C. 62, 65- 66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence allows a reasonable inference of the defendant's guilt to be deduced, then the court must deny the motion to dismiss. State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).
    Defendant argues that the evidence is insufficient to establish an assault by defendant because there is no evidence of a “show of violence accompanied by reasonable apprehension of immediate bodily harm or injury on the part of the assailed.” He also argues the evidence is insufficient to show defendant's pocket knife was a deadly weapon.
    Defendant's arguments are without merit. The crime of assault may be established by evidence of either (1) an overt act evincing an intentional offer or attempt by force or violence to do injury to another, or (2) a show of violence on the part of the accused which is sufficient to cause a reasonable apprehension of bodily harm on the part of the person assailed. State v. O'Briant, 43 N.C. App. 341, 344, 258 S.E.2d 839, 841 (1979). Either one of the alternatives is sufficient to withstand a motion to dismiss. Id. at 344-45, 258 S.E.2d 842. "A deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm." State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981). The deadly character of the instrument is often determined by the nature of the weapon and the manner in which it is used. Id. at 301, 283 S.E.2d at 726. A pocketknife is without doubt capable of producing death or great bodily harm and when the blade is two and one half inches long or longer, a pocketknife may be considered a deadly weapon as a matter of law. Id. at 301, 283 S.E.2d at 726.
Here, Mrs. Chance described defendant's knife as having a six inch blade. Defendant, holding the knife with blade exposed, charged at Chance and swung the knife at Chance's midsection. This act constituted an attempt by force or violence to injure another person. Defendant employed a deadly weapon in this pursuit. We hold this evidence is sufficient to overcome the motion to dismiss.
    Second, defendant contends the court erred by failing to declare a mistrial after Chance testified that defendant contacted him during the interim between the time he was convicted in district court and the time he was tried in superior court. Defendant concedes that he did not make a motion for a mistrial.
    The transcript shows the following during the prosecutor's direct examination of Chance:    
    Q Now since this happened on September 23rd of 2001, have you had any more contact with Jamie Goodwin concerning this case?
    A Once when he was wanting me to drop the charges.

    Q Where did this happen?

    A It happened between my mother_ and father-in-law's property, which is around the corner, and my property, since it's adjoining property.

    Q Do you recall approximately how long after September 23rd of 2001 when this happened, when this took place?

    A It was after the first conviction and he had appealed the conviction.

    MR. SMITH: Objection, Your Honor.
    THE COURT: Approach the bench.

    After the bench conference, the court sustained defendant's objection and allowed defendant's motion to strike any mention of any conviction. The court also instructed the jury to disregard the answer that was given by the witness.
    The decision whether to declare a mistrial is addressed to the sound discretion of the trial judge. State v. Adams, 347 N.C. 48, 68, 490 S.E.2d 220, 230 (1997), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998). A mistrial may be declared only if there are serious improprieties making it impossible for a fair and impartial verdict to be reached. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35-36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). Ordinarily, when the court strikes incompetent evidence and instructs the jury to disregard it, any prejudice is cured and the court does not abuse its discretion by denying a motion for mistrial. State v. King, 343 N.C. 29, 44-45, 468 S.E.2d 232, 242 (1996). Here, the court took curative actions by sustaining the objection and directing the jury not to consider theevidence. Defendant did not pursue the matter any further. Under these circumstances, we conclude the court did not abuse its discretion by not declaring a mistrial on its own motion. See State v. Prevatte, 356 N.C. 178, 254, 570 S.E.2d 440, 482 (2002).

    Third, defendant contends the court erred by admitting the testimony of Linda Overstreet that she hollered, “Eric, he just pulled a knife on Brandon.” He argues that this testimony should have been excluded as hearsay.
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2001). An exception to the hearsay rule is found in North Carolina Rule of Evidence 803(2), pertaining to “excited utterances.” The excited utterance hearsay exception allows admission of out-of-court statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2001); State v. Nicholson, 355 N.C. 1, 35, 558 S.E.2d 109, 133 (2002). To qualify as an excited utterance, the statement must relate (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication. Nicholson, at 35, 558 S.E.2d at 133; State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988).
    The statement in the case at bar was properly admitted by thetrial court as an excited utterance. The declarant was subject to the startling experience of watching a knife fight take place in which one participant is someone she knows. She yelled “Eric, he just pulled a knife on Brandon” in the midst of the moment, apparently without reflection or time for fabrication before speaking. This falls within the excited utterance exception to the hearsay rule. This assignment of error is therefore overruled.
    We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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