Appeal by defendant from judgment entered 10 July 2003 by
Judge W. Russell Duke, Jr., in Halifax County Superior Court. Heard in the Court of Appeals 11 October 2004.
(See footnote 1)
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
Kevin P. Bradley for defendant-appellant.
TIMMONS-GOODSON, Judge.
Toney Caudle (“defendant”) appeals his conviction for assault
with a deadly weapon inflicting serious injury. For the reasons
discussed herein, we hold that defendant received a trial free of
prejudicial error, but we remand the case for resentencing.
The State's evidence presented at trial tends to show the
following: Defendant and Martha Hendricks (“Hendricks”) were
“[c]lose friends” who had become “intimate” in December 2002 or
January 2003. On the night of 9 February 2003, defendant and
Hendricks were at a residence occupied by defendant's sister, Mary
Jane Caudle (“Mary Jane”). Defendant's cousin, Ronnie Caudle
(“Ronnie”), and Mary Jane's boyfriend, Boot Hunter (“Boot”), were
also at the residence. According to Hendricks, everyone but
defendant was drinking alcohol, and Mary Jane, Ronnie, and Boot
were “probably” using crack cocaine. There was no electricity or
telephone service at the residence, and the occupants had lit
candles in the living room for light.
At some point during the evening, defendant and Hendricks went
to the bedroom. According to Hendricks, while she and defendantwere in the bedroom, defendant “flipped” and accused Hendricks of
“watching” Ronnie. Hendricks denied “watching” Ronnie, but
defendant nevertheless “started grabbing and slapping and stabbing
[Hendricks] at the same time.” Defendant slapped Hendricks one
time and stabbed her eleven times with a short-handled kitchen
knife. Hendricks recognized the knife as a steel-bladed knife that
defendant used to “cut[] his rocks.”
Shortly after the altercation began, Hendricks screamed for
help. However, “[b]ecause it didn't look like [defendant] was
going to stop stabbing” her, Hendricks “had to pretend [that she]
was dead.” Hendricks “started getting weak” from losing “a lot of
blood[,]” so she “just fell to the floor and held [her] breath like
[she] was dead.” Shortly thereafter, defendant helped put
Hendricks in a vehicle and drove her to Halifax Regional Medical
Center (“Halifax Regional”). Hendricks lost consciousness on the
way to Halifax Regional, but she remembered defendant telling her
that “he would see [her] dead before he'd see [her] with anybody
else.”
During the incident, Mary Jane heard Hendricks “call twice”
from the bedroom. When she entered the room, Mary Jane “saw
[defendant] standing over top of [Hendricks].” Mary Jane then “saw
[defendant's] hand go up like that [indicating], and then it came
back down.” Mary Jane “saw the blood” but “didn't see no weapon or
no nothing.” Although there were no candles in the bedroom, “it
was light enough” for Mary Jane to see clearly, and she noted “a
bottle [that] had been broken on the bed” next to Hendricks. Hendricks was admitted to Halifax Regional via the emergency
room. During her emergency room treatment, Hendricks told police
officers that she was assaulted by defendant. Dr. Mark A. Bernat
(“Dr. Bernat”) treated Hendricks and noted that she had cuts on her
cheek, lip, head, neck, shoulder, and hands. Hendricks' wounds
required approximately thirty to forty stitches. Dr. Bernat noted
on his medical report that Hendricks' heart rate was fast and her
blood count was low. After he inquired about her low blood count,
Hendricks told Dr. Bernat that she was anemic.
On 31 March 2003, defendant was indicted for assault with a
deadly weapon inflicting serious injury. Following presentation of
the evidence, the trial court denied defendant's motion to submit
to the jury the offense of simple assault. On 10 July 2003, the
jury returned a verdict of guilty on the assault with a deadly
weapon inflicting serious injury charge. The trial court
subsequently found as an aggravating factor that defendant
committed the offense while on pretrial release of another charge.
The trial court also found defendant to be a prior record level IV
offender. Accordingly, the trial court sentenced defendant to
fifty-eight to seventy-nine months imprisonment, a term within the
aggravated range of N.C. Gen. Stat. § 15A-1340.17. Defendant
appeals.
We note initially that defendant's brief contains arguments
supporting only five of the seven original assignments of error.
Pursuant to N.C.R. App. P. 28(b)(6) (2005), the two omittedassignments of error are deemed abandoned. Therefore, we limit our
present review to those assignments of error properly preserved by
defendant for appeal.
The issues on appeal are: (I) whether the trial court erred
in instructing the jury; (II) whether the trial court erred by
refusing to submit the lesser-included offense of assault
inflicting serious injury to the jury; and (III) whether the trial
court erred by sentencing defendant in the aggravated range.
[1] Defendant first argues that the trial court erred in
instructing the jury. Defendant asserts that the trial court
committed plain error by instructing the jury that the knife
allegedly used to commit the assault was a deadly weapon. We
disagree.
Our courts apply the plain error rule cautiously and only in
exceptional cases.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983). “A prerequisite to [an appellate court's]
engaging in a 'plain error' analysis is the determination that the
instruction complained of constitutes 'error' at all.”
State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479
U.S. 836, 93 L. Ed. 2d 77 (1986). “To reach the level of 'plain
error' . . . the error in the trial court's jury instructions must
be 'so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.'”
State v. Collins, 334 N.C.
54, 62, 431 S.E.2d 188, 193 (1993) (quoting
State v. Bagley, 321
N.C. 201, 213, 362 S.E.2d 244, 251 (1987),
cert. denied, 485 U.S.1036, 99 L. Ed. 2d 912 (1988)).
In the instant case, the trial court gave the following
pertinent jury instruction:
The defendant has been charged with assault
with a deadly weapon inflicting serious
injury. For you to find the defendant guilty
of this offense, the State must prove three
things beyond a reasonable doubt.
. . . .
Second, that the defendant used a deadly
weapon. A deadly weapon is a weapon that is
likely to cause death or serious bodily
injury. A knife with a six-inch blade is a
deadly weapon.
Defendant contends that by instructing the jury that “[a]
knife with a six-inch blade is a deadly weapon[,]” the trial court
“effectively took the deadly weapon element of assault with a
deadly weapon inflicting serious injury away from the jury.”
However, in
Torain, our Supreme Court recognized that
It has long been the law of this state that
“[w]here the alleged deadly weapon and the
manner of its use are of such character as to
admit of but one conclusion, the question as
to whether or not it is deadly . . .
is one of
law, and the Court must take the
responsibility of so declaring.”
316 N.C. at 119, 340 S.E.2d at 470 (quoting
State v. Smith, 187
N.C. 469, 470, 121 S.E. 737, 737 (1924)) (alterations and emphasis
in original). After reviewing the record in the instant case, we
conclude that the evidence presented at trial leads to only one
conclusion: that the knife used by defendant was a deadly weapon.
A deadly weapon “is generally defined as any article,
instrument or substance which is likely to produce death or greatbodily harm.”
State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d
719, 725 (1981). “The definition of a deadly weapon clearly
encompasses a wide variety of knives. For instance, a hunting
knife, a kitchen knife and a steak knife have been denominated
deadly weapons
per se.”
Id. (citing
State v. Brady, 299 N.C. 547,
264 S.E.2d 66 (1980);
State v. Lednum, 51 N.C. App. 387, 276 S.E.2d
920 (1981);
State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665
(1970)). “[T]he evidence in each case determines whether a certain
kind of knife is properly characterized as a lethal device as a
matter of law or whether its nature and manner of use merely raises
a factual issue about its potential for producing death.”
Sturdivant, 304 N.C. at 301, 283 S.E.2d at 726. “Only 'where the
instrument, according to the manner of its use or the part of the
body at which the blow is aimed, may or may not be likely to
produce such results, its allegedly deadly character is one of fact
to be determined by the jury.'”
Torain, 316 N.C. at 120, 340
S.E.2d at 470 (quoting
State v. Joyner, 295 N.C. 55, 64-65, 243
S.E.2d 367, 373 (1978)). “The actual effects produced by the
weapon may [] be considered in determining whether it is deadly.”
State v. Roper, 39 N.C. App. 256, 258, 249 S.E.2d 870, 871 (1978).
In the instant case, the evidence tends to show that Hendricks
was stabbed eleven times and her wounds required approximately
thirty to forty stitches. Dr. Bernat testified that when Hendricks
was admitted to the hospital, he “noticed [Hendricks] had blood on
her head and arms” and that “[t]here was some concern over how much
blood she might have lost[.]” Dr. Bernat testified that Hendrickshad suffered multiple wounds to her face, shoulder, head, neck, and
hands. Mary Jane testified that she saw defendant's hand go up and
down while defendant was “standing up over [Hendricks],” and
although she admitted to seeing a broken bottle on the bed beside
Hendricks, she maintained that Hendricks had been “stabbed” because
of the blood she saw. Hendricks testified that she was
hospitalized for two days because of her low blood pressure, and
she further testified that she recognized the knife defendant used
to stab her as the one he used to “cut[] his rocks.” We conclude
that this evidence amply supports the trial court's instruction
that the knife was a deadly weapon
per se. Therefore, we hold that
the trial court did not err in its instruction regarding the deadly
character of the knife.
[2] Defendant also contends that the trial court committed
plain error in its jury instructions by stating that the knife was
a “knife with a six-inch blade” and that “[s]tab wounds around the
head, neck, and the hand requiring 32 stitches would be a serious
injury.” Defendant asserts that the trial court's statements
constitute an impermissible expression of opinion. We disagree.
N.C. Gen. Stat. § 15A-1222 (2003) provides that the trial
court “may not express during any stage of the trial, any opinion
in the presence of the jury on any question of fact to be decided
by the jury.” Similarly, N.C. Gen. Stat. § 15A-1232 (2003)
provides that in instructing the jury, the trial court “shall not
express an opinion as to whether or not a fact has been proved and
shall not be required to state, summarize or recapitulate theevidence, or to explain the application of the law to the
evidence.”
In the instant case, the trial court stated that the knife
used by defendant was six inches long. Defendant asserts that this
was plain error “because there was no evidence of use of a knife
with a six-inch blade[,]” and therefore the trial court's statement
“amounted to an expression of opinion that the victim's
demonstration was of a knife with a six-inch blade.” With respect
to the knife's length, the transcript reveals that on cross-
examination, Hendricks responded in the affirmative when
defendant's counsel asked if the knife blade was about “four
inches.” The record does not contain any testimony or evidence
tending to show that the knife had a six-inch blade. However, as
discussed above, the deadly character of the knife was not an issue
of fact to be determined by the jury. The trial court did not err
by instructing the jury that the knife was a deadly weapon and
leaving to the jury the determination of whether the deadly weapon
was used by defendant. Therefore, we are not convinced that the
trial court's mischaracterization of the knife's length was an
error “so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.”
Bagley, 321 N.C. at 213,
362 S.E.2d at 251.
[3] Similarly, after reviewing the evidence introduced at
trial regarding Hendricks' stab wounds, we are unconvinced that the
trial court's statement regarding the nature of the wounds amountedto plain error. Our Supreme Court “has not defined 'serious
injury' for purposes of assault prosecutions, other than stating
that '[t]he injury must be serious but it must fall short of
causing death' and that '[f]urther definition seems neither wise
nor desirable.'”
State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d
467, 471 (1994) (quoting
State v. Jones, 258 N.C. 89, 91, 128
S.E.2d 1, 3 (1962)) (alterations in original). However, in
State
v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 (1991), our
Supreme Court adopted this Court's standard regarding “serious
injury” in jury instructions, holding that “[i]n the absence of
conflicting evidence, a trial judge may instruct the jury that
injuries to a victim are serious as a matter of law if reasonable
minds could not differ as to their serious nature.”
In the instant case, defendant offered no evidence at trial to
contradict the serious nature of Hendricks' injuries. Defendant's
assertion in his brief that Dr. Bernat's testimony would support a
finding that the wounds penetrated “only slightly below the skin
and not so deeply as to cause substantial bleeding or any other
significant injury” is without merit. Dr. Bernat testified at
trial that six of Hendricks' wounds reached the subcutaneous tissue
under the skin, “where if you cut yourself, you see a little fat
and things underneath.” Dr. Bernat testified further that when he
“looked in the wound” at the base of Hendricks' thumb, he “could
see the tendon close to her thumb that helps you bend your thumb
and straighten it out.” Hendricks suffered injuries to her cheek,
lip, head, neck, and hands, and as a result of her injuries,Hendricks required approximately thirty to forty stitches and was
hospitalized for two days. We conclude that this evidence is
sufficient to support a determination that reasonable minds could
not differ as to the serious nature of Hendricks' injuries, and
therefore, the trial court's instructions did not contain an
impermissible expression of opinion. Accordingly, defendant's
first argument is overruled.
[4] Defendant next argues that the trial court committed plain
error by refusing to submit to the jury the lesser-included offense
of assault inflicting serious injury. Defendant contends that
sufficient evidence was presented to support the submission of the
offense. We disagree.
“A defendant 'is entitled to an instruction on lesser included
offense[s] if the evidence would permit a jury rationally to find
him guilty of the lesser offense and acquit him of the greater.'”
State v. Uvalle, 151 N.C. App. 446, 452-53, 565 S.E.2d 727, 731
(2002) (quoting
State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922,
924 (2000)) (alteration in original),
disc. review denied, 356 N.C.
692, 579 S.E.2d 95 (2003). However, a lesser-included offense
should not be submitted to the jury where “the evidence is
sufficient to support a finding of all the elements of the greater
offense, and there is no evidence to support a finding of the
lesser offense.”
State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d
225, 226 (1995). Thus, “[w]hether [a] defendant is entitled to an
instruction on an offense which is a lesser included offense
depends upon the evidence presented at trial.”
Uvalle, 151 N.C.App. at 454, 565 S.E.2d at 732.
Defendant asserts that the evidence in the instant case
required an instruction on assault inflicting serious injury
because the evidence presented “reasonable doubts about whether a
knife was used at all.” In
State v. Bell, 87 N.C. App. 626, 635,
362 S.E.2d 288, 293 (1987), this Court held that it was plain error
for the trial court not to submit the lesser-included offense of
assault inflicting serious injury where there was “conflicting
evidence” regarding whether the defendant used a firearm to assault
the victim. We recognized that “[b]ased on the [evidence], the
jury could have disbelieved that a weapon was involved at all, or
could have believed that any shot fired was not the result of [the]
defendant's use of a weapon[,]” and we concluded that “[t]here is
simply no way to ascertain what verdict the jury might have reached
had they been given an alternative which did not include the use of
a deadly weapon.”
Id. However, after reviewing the record in the
instant case, we conclude that the evidence did not require that
the jury be instructed regarding a lesser-included offense.
Defendant contends that the presence of the broken bottle on
the bed beside Hendricks was sufficient to demonstrate that her
wounds may have been caused by the bottle rather than the knife.
On cross-examination, defendant's counsel asked Dr. Bernat whether
Hendricks' injuries were “consistent with glass from a broken
bottle[.]” Dr. Bernat replied as follows:
They could have been cuts from a broken
bottle; they could have been cuts from a
knife. When I was doing the wounds, I didn't
find any broken glass. And they were all veryclean, very straight. They weren't all jagged
and things as if someone puts their hand
through a window or something. So if somebody
had been cut with a clean piece of glass
straight, I wouldn't have been able to tell
the difference.
On redirect examination, the State asked Dr. Bernat to further
describe Hendricks' wounds. Dr. Bernat replied as follows:
Ms. Hendricks' injuries were just very linear,
very straight. They weren't like jagged, like
a jagged piece of glass had cut it. I did not
find any glass in her. I mean, there could be
somebody who might have been holding a piece
of glass and like the glass being slid on
their hand, so they would have a nice clean
cut with no glass in it. But the majority of
glass injuries are usually because of a car
accident or they fell onto a glass window or
something like that.
Although Dr. Bernat testified that Hendricks' wounds “could
have been cuts from a broken bottle,” Dr. Bernat twice stated that
he “didn't find any broken glass” in Hendricks' wounds, and he
stated that Hendricks' wounds were “very clean, very straight[,]”
not “like a jagged piece of glass had cut [them].” Dr. Bernat
testified that “[t]he length of [Hendricks' wounds] was the same;
the depth was the same.” Dr. Bernat further testified that eighty
percent of the patients with wounds on their head from shattered
glass have “a little piece of glass or something” in their hair.
According to Dr. Bernat, “somebody could get cut with a sharp clean
piece of glass and get a linear cut, if someone went like this
[indicating] and made very straight movements.” However, Hendricks
described the instrument used to wound her in detail, claiming that
it was a short-handled kitchen knife with a steel blade that
defendant used to “cut[] his rocks.” She described defendant as“holding [her] down with one hand and stabbing [her] with the
other.” Although Mary Jane testified that she saw a broken bottle
on the bed beside Hendricks, Mary Jane also testified that she saw
defendant's hand “go up” and then “c[o]me back down” while
defendant was “standing over top of [Hendricks].” Neither
Hendricks nor Mary Jane testified that defendant cut Hendricks
linearly with a piece of broken glass.
In light of the foregoing, we conclude that the evidence in
the instant case is not so conflicting as to require the trial
court to submit to the jury the issue of assault inflicting serious
injury. The evidence is sufficient to support a finding of all the
elements of assault with a deadly weapon inflicting serious injury,
but insufficient to support a finding that defendant did not use a
deadly weapon during the altercation. Therefore, the trial court
did not err by refusing to submit the lesser-included offense to
the jury. Accordingly, defendant's second argument is overruled.
[5] Defendant's final argument is that the trial court erred
by sentencing him in the aggravated range. Defendant asserts that
the trial court was prohibited from sentencing him in the
aggravated range because the issue was not submitted to the jury.
We agree.
In
State v. Allen, 359 N.C. 425, ___ S.E.2d ___ (Filed 1 July
2005) (No. 485PA04), our Supreme Court recently examined the
constitutionality of this state's structured sentencing laws and
procedures in light of the United States Supreme Court's decisions
in
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000)and
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).
The Court concluded in
Allen that, when “[a]pplied to North
Carolina's structured sentencing scheme, the rule of
Apprendi and
Blakely is: Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
presumptive range must be submitted to a jury and proved beyond a
reasonable doubt.” 359 N.C. at 437, ___ S.E.2d at ___ (citing
Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14;
Apprendi, 530
U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13,
15A-1340.14, 15A-1340.16, 15A-1340.17). In the instant case,
following defendant's conviction for assault with a deadly weapon
inflicting serious injury, the trial court found as an aggravating
factor that defendant committed the offense while on pretrial
release on another charge. The trial court unilaterally found this
factor and failed to submit it to the jury for proof beyond a
reasonable doubt. Although the State contends that defendant
admitted to the aggravating factor at sentencing, after careful
review of the transcript, we are unable to conclude that defendant
affirmatively admitted that the aggravating factor applies to the
instant case. Therefore, in light of our Supreme Court's decision
in
Allen, we conclude that the trial court committed reversible
error.
(See footnote 2)
Accordingly, we remand the case for resentencing. No error in part; remanded for resentencing.
Chief Judge MARTIN and Judge HUDSON concur.
Footnote: 1