STATE OF NORTH CAROLINA
v. Forsyth County
No. 02CRS063602
THOMAS ALEXANDER TERRY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Joseph Finarelli, for the State.
Charlotte Gail Blake for defendant-appellant.
HUNTER, Judge.
Thomas Alexander Terry (“defendant”) appeals his conviction
for assault with a deadly weapon inflicting serious injury.
Finding no error, we affirm the trial court's judgment.
Complainant Laynerd Dever Staley (“Staley”) testified that he
had known defendant “[b]asically all of his life.” In the summer
of 2002, defendant asked Staley to hold onto defendant's nine
millimeter handgun. After taking custody of the gun, Staley sold
it without defendant's permission. When defendant subsequently
asked him to return the gun on five or six occasions, Staley
“avoid[ed] taking it to him.” On 7 December 2002, Staley saw defendant on Ferndale Street
sitting with two men in his red Lincoln Navigator. Defendant
exited his vehicle, placed Staley in a choke-hold, and jabbed a
pocketnife or other sharp object into the side of his head. After
asking where his gun was, defendant knocked Staley to the ground,
struck him ten to twelve times with his hands and beat him in the
head with a block of ice “[u]ntil the ice . . . broke[.]” One of
his two associates then brought defendant a “miniature sword” from
his vehicle. Staley described the sword as “at least two feet
long” with a blade the approximate width of his finger.
Defendant removed the sword from its case, raised it into the
air, and brought it “straight down toward [Staley's] throat.”
Believing his “life was about to come to an end[,]” Staley parried
the sword with his hand, “and the blade slashed all the meat” from
his thumb. After forcing Staley's arm downward, defendant ran the
blade of the sword through Staley's left palm and into the ground.
With Staley's hand pinned to the ground, defendant kicked him for
“about ten minutes” before removing the sword. When Staley tried
to walk away, defendant again knocked him to the ground and kicked
him until his associates intervened. As Staley stood up, defendant
told him, “I want my damn gun.” Staley walked back to his house
before passing out in the kitchen. After being revived by his
mother, he called the police.
Staley was taken by ambulance to the hospital where he stayed
for approximately eight hours. He returned to the hospital the
following day and remained for three and one-half days with aninfection in his hand and arm. At the time of trial, Staley was
experiencing “tremendous pain” in his elbow as well as pain in his
left hand. He had scars on his left thumb and palm, was unable to
straighten two fingers on his left hand, and believed he would
“never be able to have full use of it again.”
Winston-Salem Police Officer Steven Davis (“Davis”)
interviewed Staley at his house immediately following the assault
on 7 December 2002. When Davis arrived at the residence, Staley
“was holding a washcloth and towel around his hand and there was
profuse blood just everywhere.” Davis gave the following account
of Staley's statement:
He said that [defendant] had stabbed him. He
said the stab was through his left hand, which
was agreeing with . . . all the blood from his
left hand. He described it, the weapon, as a
minisword. He held his hands apart and showed
me and it was . . . approximately 16
inches. . . .
In addition to providing defendant's name and description, Staley
gave Davis the license tag number of defendant's red Navigator.
Davis arrested defendant after spotting his vehicle at a gas
station on the 100 block of North Martin Luther King, Jr. Drive.
Asked about Staley, defendant told Davis, “I kicked his ass.”
Defendant's pants and boots were stained with blood.
On 10 September 2003, Staley signed a letter stating that
defendant “was not the man that assaulted me on December the 7th.”
Staley wrote the letter after defendant confronted him on the
street and told him to “tell them I wasn't the one that done it or
do something because I can't be going to jail for this.” Staleycomplied with the request, because he was afraid of defendant and
“wanted all this to just be over with.”
On appeal, defendant first challenges the trial court's denial
of his motion to dismiss at the conclusion of the evidence. In
reviewing the denial of a motion to dismiss, we must examine the
evidence in the light most favorable to the State to determine if
there is substantial evidence of the element of the offense charged
and of defendant's identity as the perpetrator. See State v.
Jacobs, 128 N.C. App. 559, 563, 495 S.E.2d 757, 760-61, disc.
review denied, 348 N.C. 506, 510 S.E.2d 665 (1998). “Substantial
evidence” has been defined as that which would permit a rational
juror to be persuaded of a fact at issue beyond a reasonable doubt.
State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002)
(citing State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781,
cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002)). For
purposes of our review, conflicts between witnesses or other
contradictions in the evidence are matters properly left to the
jury. Id. at 596, 573 S.E.2d at 869 (citing State v. Benson, 331
N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). “In addition, the
defendant's evidence should be disregarded unless it is favorable
to the State or does not conflict with the State's evidence.” Id.
(citing State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653
(1982)).
“The essential elements of the charge of assault with a deadly
weapon inflicting serious injury are (1) an assault (2) with a
deadly weapon (3) inflicting serious injury (4) not resulting indeath.” State v. McCree, 160 N.C. App. 200, 205-06, 584 S.E.2d
861, 865 (2003) (citing N.C. Gen. Stat. § 14-32(b) (2001); State v.
Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997)).
Defendant does not contest the evidence that Staley was the victim
of an assault in which he received a serious, non-fatal injury.
Instead, defendant argues that the evidence was insufficient to
show that he “was the one who inflicted Mr. Staley's injuries or
that the minisword was a deadly weapon as it was used[.]” 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).
We find defendant's claim without merit. The State adduced
substantial evidence of defendant's responsibility for the assault.
Staley testified that he had known defendant his entire life,
identified defendant by name as his attacker, and described the
entire course of defendant's assault upon him. This evidence was
corroborated by Staley's and defendant's statements to Davis soon
after the assault, and by the blood found on defendant's clothing.
Moreover, a reasonable juror could find that a “miniature sword”
between sixteen inches and two feet in length and sharp enough to
cut the flesh from Staley's thumb and pass completely through his
hand into the ground qualified as a deadly weapon. Indeed, our
courts have routinely found knives significantly smaller than the
weapon in this case to be deadly weapons as a matter of law. See,
e.g., State v. Torain, 316 N.C. 111, 122, 340 S.E.2d 465, 471
(upholding peremptory instruction that “'a utility knife is adangerous or deadly weapon'”) (citation omitted), cert. denied, 479
U.S. 836, 93 L. Ed. 2d 77 (1986); State v. Rowland, 89 N.C. App.
372, 380, 366 S.E.2d 550, 554 (1988) (finding “a knife five and
one-half to nine inches long and a blade one and one-half to three
inches long” to be a deadly weapon per se). Equally unavailing is
defendant's claim that the sword was not used as a deadly weapon.
In addition to the injuries to Staley's hand and the “profuse”
bleeding described by Davis, the evidence showed that defendant
raised the sword into the air and brought it “straight down toward
[Staley's] throat.” See generally State v. Peacock, 313 N.C. 554,
563, 330 S.E.2d 190, 196 (1985) (assessing weapon's deadliness by
“the nature of the instrument, the manner in which defendant used
it or threatened to use it, and in some cases the victim's
perception of the instrument and its use”).
Defendant also claims the trial court committed plain error by
omitting the word “innocence” from the pattern jury instruction on
motive. 1 N.C.P.I. Crim. 104.10 (Repl. March 1986). The full
pattern instruction reads as follows:
Proof of motive for the crime is
permissible and often valuable, but never
essential for conviction. If you are
convinced beyond a reasonable doubt that the
defendant committed the crime[,] the presence
or absence of motive is immaterial. Motive
may be shown by facts surrounding the act if
they support a reasonable inference of motive.
When thus proved, motive becomes a
circumstance to be considered by you. The
absence of motive is equally a circumstance to
be considered on the side of innocence.
Id. (emphasis added). The transcript reflects that the final word
either was not read to the jury or was inaudible to the courtreporter. In light of the incomplete instruction, defendant avers,
“[t]he jury [wa]s left with no instructions on what to do if there
[wa]s an absence of motive.” Had it known that his lack of motive
could be viewed as evidence of his innocence, defendant asserts
that “the jury would likely have reached a different result[.]”
Because defendant raised no objection at trial, the court's
instruction is reviewed only for plain error. See State v. Reid,
335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994) (citing State v.
Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)). In order to show plain
error, the defendant must demonstrate to this Court “(i) that a
different result probably would have been reached but for the error
or (ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997), (citing
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)).
We find no plain error here. The trial court's omission was,
at worst, a lapsus linguae which neither misled the jury nor had
any likely effect on its verdict. See State v. Andrews, 131 N.C.
App. 370, 376, 507 S.E.2d 305, 309 (1998) (finding no plain error
where the trial court mistakenly “said 'lack of provocation by the
defendant' rather than 'lack of provocation by the victim' in the
jury instructions”), disc. review denied, 350 N.C. 100, 533 S.E.2d
471 (1999); accord State v. Reid, 335 N.C. at 667, 440 S.E.2d at
787. We note that the State adduced affirmative evidence ofdefendant's motive for the assault, i.e., his displeasure with
Staley's failure to return his gun.
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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