An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-154


Filed: 1 November 2005


         v.                        Wake County
                                Nos. 04 CRS 017767-68

    Appeal by Defendant from judgment entered 21 July 2004 by Judge Donald W. Stephens in Superior Court, Wake County . Heard in the Court of Appeals 10 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.

    Anne Bleyman for defendant-appellant.

    WYNN, Judge.

    “The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'” State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (citation omitted). In this case, competent evidence supports the trial court's findings of fact that Defendant voluntarily and knowingly waived his rights. Therefore, the trial court did not err in denying Defendant's motion to suppress his statements.
    On 5 April 2004, Defendant David Earl Jones was indicted on two counts of assault with a deadly weapon with intent to kill inflicting serious injury . The case was tried at the 20 July 2004Criminal Session of Wake County Superior Court.
    The evidence presented at trial tended to show the following: On 12 March 2004, Tonya Bridges was living in an apartment with Defendant and their three-year-old daughter, Miracle. Bridges and Defendant had an argument, and Bridges told Defendant not to return.
    The next day, Bridges had friends come over to her apartment, including Maurice Adams. Bridges and her friends were “all sitting around talking, drinking, listening to music.” Eventually some of the friends left, and Adams left and returned with more beer. Bridges consumed about three to four beers, while Adams consumed ten cans or more of beer. Defendant later showed up at the apartment and asked to use the bathroom. After using the bathroom, Defendant, Adams, and another person went outside to smoke a cigarette.
    After finishing the cigarettes, Defendant and Adams walked back into the apartment. Adams placed his hand on a DVD player that Defendant had recently given Bridges for her birthday. Defendant then started “saying stuff,” calling Bridges “bitches” and suggesting that he and Adams have sex with her. Defendant went into the kitchen to get some water, and came back out and said he was going to kiss Miracle, who was seated next to Bridges. When he bent down to kiss Miracle, Defendant stabbed Bridges in the chest. Defendant then quickly stabbed Bridges a second time, this time under her left breast. Defendant was using a “big restaurant knife” that he had found in the kitchen. Bridges estimated thatthe knife was eight or nine inches long.
    After stabbing Bridges, Defendant attempted to cut Adams by the throat, but instead cut him on the right side of his neck. He then pushed Adams off of him and Adams went out the front door. Bridges picked up Miracle, and Defendant told Bridges to put her down. After putting her down, Defendant stabbed Bridges through her right hand. Bridges headed for the bathroom, hoping to get some Clorox to fight Defendant off with. However, before she could get the Clorox, Defendant stabbed her in the left side. Defendant was pushing the knife into Bridges while she tried to pull it out. Bridges hit Defendant and he fell on his back. Defendant left the apartment and Bridges walked to her front door and called for help.     At trial, Defendant moved to suppress an oral statement he made to police, arguing that the statement was not knowingly and voluntarily given. Defendant specifically cited the State's failure to produce a signed waiver form, which the State claimed had been lost. The trial court denied the motion.
     Defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon, and was sentenced to a term of 116 to 149 months imprisonment . Defendant appeals.
    We first consider whether the trial court erred in denying Defendant's motion to suppress. Defendant contends that because there was evidence that he was intoxicated and agitated, it was necessary for the State to present a signed waiver in order to showthat his waiver of his Miranda rights was voluntary, knowing, and understanding. Without the form, Defendant argues that there was insufficient evidence to support the findings of fact in the order denying the motion to suppress. After careful review of the record, briefs, and contentions of the parties, we affirm.
    “The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'” Smith, 160 N.C. App. at 114, 584 S.E.2d at 835 (citation omitted). If the trial court's conclusions of law are supported by its factual findings, we will not disturb those conclusions on appeal. State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001).
    In the case sub judice, the trial court found as fact that “defendant was not so impaired by alcohol or that he was unable to comprehend his rights or waive his rights.” The trial court further found that Defendant “was coherent and sufficiently clear headed to make informed decisions.” There was evidence in the record to support the trial court's findings. Defendant was driving a moped when he was arrested. The arresting officer testified that although Defendant “had an alcohol odor about him,” he did not pursue an impaired driving arrest. The officer stated that Defendant was cooperative, and answered in the negative when asked if Defendant was “stumbling, falling down drunk.” Detective J.P. Arnold of the Raleigh Police Department, who interviewed Defendant after his arrest, testified that he advised Defendant ofhis Miranda rights, that Defendant appeared to understand his rights, and Defendant signed and waived his Miranda rights. Although the form was lost and could not be located for the trial, the State was not required to produce the signed written waiver of rights form in order to make Defendant's statement admissible at trial. State v. Monroe, 27 N.C. App. 405, 407, 219 S.E.2d 270, 271 (1975) (“What was at issue here was whether defendant knowingly and voluntarily waived his rights, not what were the contents or terms of the written document itself.”). Accordingly, we conclude that Defendant's statements were properly admitted as evidence at trial. The assignment of error is overruled.
    Defendant next argues that the trial court committed plain error by instructing the jury and prospective jurors prior to trial that the knife used in the assaults was a deadly weapon as a matter of law. The trial court stated to the prospective jurors that Defendant was “accused of assault __ feloniously assaulting Tonya Bridges with a knife, a deadly weapon, with the intent to kill.” The trial court repeated the accusation in reference to Maurice Adams, again stating that Defendant was accused of attacking Adams “with a knife, a deadly weapon.” Defendant contends that the trial court's instructions amounted to an improper expression of opinion. Defendant contends that the error was prejudicial, because it shifted away from the State the burden of proving that the knife was a deadly weapon.
We disagree with Defendant and find no error. Despite Defendant's contentions to the contrary, the trial court was notexpressing any opinion or instructing the jury on the law of the case. The trial court was merely informing the prospective jurors about the case in accordance with section 15A-1213 of the North Carolina General Statutes. See N.C. Gen. Stat. § 15A-1213 (2004) (“Prior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant's plea to the charge, and any affirmative defense of which the defendant has given pretrial notice[.]”). The trial court identified Defendant, the names of the victims, the date of the alleged offense, and Defendant's plea to the charge. The trial court then summarized the indictments, explaining to the prospective jurors the charges against Defendant. “This procedure is entirely appropriate and certainly complies with the spirit of G.S. 15A-1213.” State v. McNeil, 47 N.C. App. 30, 34, 266 S.E.2d 824, 826 (1980). Moreover, the trial court explained to the jury that the charges against Defendant were mere accusations, stating that Defendant was presumed to be innocent, and that the State had the burden of proving Defendant's guilt beyond a reasonable doubt. Accordingly, the assignment of error is overruled.         
    No error .
    Judges CALABRIA and JACKSON concur.
     Report per Rule 30(e).

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